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Full text of "North Carolina Register v.12 no. 13 (1/2/1998)"

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NORTH CAROLINA 

REGISTER 



VOLUME 12 • ISSUE 13 • Pages 1093 - 1229 

January 2, 1998 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



IN THIS ISSUE 

NPDES Permits 

Voting Rights Letter 

Administrative Hearings, Office of 

CPA Examiners, State Board 

Culture Resources 

Environment and Natural Resources 

Health and Human Services 

Labor 

Physical Therapy Examiners 

Real Estate Commission 

Rules Review Commission 

Contested Case Decisions 




This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the ageni 
can address, but are not inclusive 



components, consult with the agencies below. The bolded headings are typical issues which the given agency M 



Rule Notices. Filings. Register. Deadlmes; Copies of Proposed Rules, etc. 

Office of Admimstralive Hearings;,; 

Rules Division ,y-\>\,y.-^'''\y.,:. 'miA ■:': ■:■:■ Jl IP" '''''''■■^"'■>--.. 

Capehart-CrockerHbiise"' ::::%^^ \"% ■----*■ {919) "Ib^ 

424 North Blount Street ii: ^' ^^^^...^^^-^-:^>^-i9l9:^J23-3461¥A^:M 

Raleigh, North Carolina 27601-28.1^;:;;""-^"""""" ' "^''--^^ ^ .Mm.^ 

contact: -Mollj- Masich. Director APA Serviees minasich@oah.state.ri9vus "1 .^d 

. / Rub^' Creech,^^J^ CoGrdinator rcreech'aoah. state. nc.usx:x 



Fiscal Notes & Economic J^halystS 

. .Office of State Budget and Management 

// 1 16 West Jones Street (919)733-7061 

/I .ilaleigh, North Carolina 276fi3-80||;;:il- |9i9)73iiO640-FAX 

;' I :" contact: Mark Sisak. Economist II|Mi \-. mslsakgosbm, state incus 

Anna TefFt. Econoimst II I atefitSosbm.state.nc.us 



I Rule Review and Legal Issaes ^| 

;:; : Ruks Re\"ie\v Commission :i % |iii;:i I jl j'--™;»'' | .M 

ill 1307Glenwood Ave., Suite 159 %, 1, "f (919) 733-2721 /| Ui i 

\|lFi|g|^, North Carolina 27^5 l|:;: J|_ 1, ^::^^^^^^^^^^^^^^^ ///"'"""'■ ! H ' 

\"Vcokacf: Joe DeLuca Jr., Staff Director CdasselWi^^^^^^^^^ // :mtjJ /// 

'Vi :;. :i'v :BobbvBrvan. Staff Attomev;; ; ; ; .;Miiiii; ■ // ^^^^^ /// 



Legislative Process Concerning Rule Making 

Joint Legislati\e Administratue Procedure CXersight Committee 

545 Legislative Office Building 

300 North Salisbur?- Street '<::::■■■., -:-:::::::::: (919)733-2578 

Raleigh, North:Caro!ina 27611,/ ■■"->:;;;: „^^^^ (9 Ig). 715-5*60 FAX 



contact: Man' Shuping,. Staff Liai soil f 'g-^^-^^.^.-,:Tm!e^(^;is.rvi:ga.^e ncus 



County and Municipality Government Questions or Notification 

NC Association of Count>' Commissioners 

215 North Dawson Street (919) 715-2893 

Raleigh. North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 

215 North Dawson Street (919) 715-4000 

Raleigh. North Carolina 27603 

contact: Paula Thomas 



i 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



NORTH CAROLINA 
REGISTER 




Volume 12, Issue 13 
Pages 1093 - 1229 



January 2, 1998 



This issue contains documents officially filed 
through December 8, 1997. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



IN THIS ISSUE 



I. IN ADDITION 

Environment and Natural Resources 

Environmental Management 1095 

NPDES Permits 1093 - 1094 

Voting Rights Letter 1096 

II. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Parks and Recreation, Division of 1097 

III. PROPOSED RULES 

Office of Administrative Hearings 

Hearings Division 1172 - 1173 

Environment and Natural Resources 
Wildlife Resources Coimnission 1137 - 1138 

Health and Human Services 

Child Care Commission 1098 - 1135 

Vocational Rehabilitation, Division of 1135-1137 

Licensing Boards 

CPA Examiners, State Board 1138-1150 

Physical Therapy Examiners 1150-1159 

Real Estate Commission 1 159 - 1 172 

IV. TEMPORARY RULES 
Cultural Resources 

Historical Commission 1174 - 1180 

Environment and Natural Resources 

Wildlife Resources Commission 1186 - 1188 

Health and Human Services 

Social Services Commission 1180 - 1184 

Labor 

Boiler & Pressure Vessel Division 1184-1186 

V. RULES REVIEW COMMISSION 1189-1191 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 1192 - 1200 

Text of Selected Decisions 

96 EDC 0766, 1708 1201 - 1214 

96 OSP 1665 1215 - 1221 

97 EHR 0195 1222 - 1228 

97 OSP 0374 1222 - 1228 

Vn. CUMULATIVE INDEX 1-66 



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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier 
of Rules for publication . 



STATE OF NORTH CAROLINA 
ENVIRONMENTAL MANAGEMENT COMMISSION 

POST orncE box 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL 
NPDES PERMITS 

Public notice of intent to issue or reissue expiring State National Pollutant Discharge Elimination System (NPDES) General 
Permits for Point Source Discharges of Stormwater associated with the following activities: 

1 . NPDES General Permit No. NCG050000 for stormwater point source discharges associated with activities classified 
as establishments primarily engaged in Apparel and Other Finished Products Made from Fabrics and Similar Materials[standard 
industrial classification (SIC) 23], Printing Publishing and Allied Industries [SIC 27], Converted Paper and Paperboard Products 
[SIC 267], Paperboard Containers and Boxes [SIC 265], Miscellaneous Manufacturing Industries [SIC 39], Leather and Leather 
Products [SIC 31], and Rubber and Miscellaneous Products [SIC 30]. The following activities are specifically excluded from 
coverage under this General Permit: Leather Tanning and Finishing [SIC 311] and Tires and Iimer Tubes [SIC 301]. 

2. NPDES General Permit No. NCG070000 for stormwater point source discharges associated with activities classified 
as establishments primarily engaged in Stone, Clay, Glass, and Concrete Products [standard industrial classification (SIC) 32]. 
The following activities are specifically excluded from coverage under this General Permit: Ready-mixed concrete [SIC 3273]. 

3. NPDES General Permit No. NCGl 10000 for stormwater point source discharges associated with Treatment Works 
treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage, treatment, 
recycling, and reclamation of municipal or domestic sewage, with a design flow of 1 .0 million gallons per day or more, or facilities 
which are required to have an approved pretreatment program under Title 40 CFR Part 403, including lands dedicated to the 
disposal of sewage sludge that is located within the confines of the facility. 

4. NPDES General Permit No. NCG1300(X) for stormwater point source discharges associated with activities classified 
as establishments primarily engaged in the wholesale trade of non-metal waste and scrap (hereafter referred to as the non-metal 
waste recycling industry) [a portion of standard industrial classification (SIC) 5093]. The following activities are specifically 
excluded from coverage under this General Permit: the wholesale trade of metal waste and scrap, iron and steel scrap, and 
nonferrous metal scrap; waste oil recycling; and automobile wrecking for scrap. 

5. NPDES General Permit No. NCG2 10000 for stormwater point source discharges associated with activities classified 
as establishments primarily engaged in Timber Products [standard industrial classification (SIC) 24]. The following activities are 
specifically excluded from coverage imder this General Permit: Wood Kitchen Cabinets [SIC 2434], Wood Preserving [SIC 2491], 
Logging [SIC 241], and Wood Chip Mills. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes of North 
Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental Management 
Commission proposes to reissue State NPDES General Permits for the discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the draft Permits are available 
by writing or calling: 

Bradley Bennett 

Water Quality Section 

N.C. Division of Water Quality 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (919) 733-5083 ext. 525 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1093 



L\ ADDITION 



Persons wishing to comment upon or object to the proposed determinations are invited to submit their comments in writing 
to the above address no later than Februan.' J^ 1998. All comments received prior to that date will be considered in the final 
determination regarding permit issuance. A public meeting may be held where the Director of the Division of Water Quality finds 
a significant degree of public interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Water Quality, 5 12 N. Salisbury Street, 
Room 942 T, Archdale Building. Raleigh, Nonh Carolina. They may be inspected during normal office hours. Copies of the 
information of file are available upon request and payment of the costs of reproduction. All such comments and requests regarding 
these matters should make reference to the draft Permit Numbers, NCG050000, NCG070000, NCGl 10000, NCG130000, or 
NCG2 10000. 



Date: 12/05/1997 Bradle\- Bennett 

(for) A. Preston Howard, Jr., P.E., Director 
Division of Water Quality 



( 



( 



1094 NORTH CAROLINA REGISTER January 2, 1998 12:13 



IN ADDITION 



TITLE ISA -DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

The Environmental Management Commission (EMC) is extending the comment period for rules proposed for revision in 
the My 1, 1997 North Carolina Register, Volume Number 12, Issue Number 1 on pages 10, 11, 12, 16 and 17. The EMC is 
seeking additional comment on the proposal to revise the WS-IV ten-mile Protected Area boundary for the following water supply 
watersheds: 

First Broad River (Cleveland County Sanitary District) - 15A NCAC 2B .0306 (Broad River Basin) 
South Fork Catawba River (High Shoals) - 15A NCAC 2B .0308 (Catawba River Basin) 
Mayo River (Mayodan) - 15A NCAC 2B .0313 (Roanoke River Basin) 
Dan River (Madison) - 15A NCAC 2B .0313 (Roanoke River Basin) 
Tar River (Greenville) - 15A NCAC 2B .0316 (Tar River Basin) 

The EMC conducted public hearings on August 25, 1997 with the purpose of soliciting public comment on the proposal 
to revise the Protected Area boundary for several WS-IV water supplies. Following the review of all the comments received, the 
EMC decided to solicit additional comments on the above water supplies. You may submit written comments, data, or other 
information relevant to the proposal to revise the WS-IV Protected Area for the above water supplies by January 22. 1998 . It is 
very important that all interested and potentially affected persons or parties make their views known to the EMC whether in favor 
or opposed to any and all provisions of the proposal. The EMC may not adopt a rule that differs substantially from the text of the 
proposed rule published in the North Carolina Register unless the EMC publishes the text of the proposed rule and accepts 
comments on the new text. All interested and potentially affected persons are strongly encouraged to read the entire announcement 
and supporting information and make corrmients on the proposed revisions to the WS-IV ten-mile Protected Area boundary 
watersheds listed above. You may obtain further explanations and details of the proposed rule making by writing Steve Zoufaly 
at DENR/ Division of Water (Juality, Planning Branch, P.O. Box 29535, Raleigh, NC 27626-0535, or by calling 919-733-5083, 
extension 566 (FAX 919-715-5637.) 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1095 



IN ADDITION 



( 



U.S. Depanment of Justice 
Civil Rights Division 



IKP:GS;SWJ:tlb Voting Seciion 

DJ 166-012-3 PO. Box 66128 

97-3060 Washington, D.C. 20035-6128 



November 18, 1997 



Michael B. Brough, Esq. 

Michael B. Brough & Associates 

1829 East Franklin Street 

Suite 800-A 

Chapel Hill, North Carolina 27514 



Dear Mr. Brough: 

This refers to the annexation (Ordinance No. 97-14) and its designation to District 4 of the Town of Tarboro in 
Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c. We received your submission on September 19, 1997. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 

Isabelle Katz Pinzler 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Elizabeth Johnson 
Chief, Votine Section 



( 



1096 NORTH CAROLINA REGISTER January 2, 1998 12:13 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule ser\'es as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency senes as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. 150B-21.2. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

CHAPTER 12 - PARKS AND RECREATION AREA RULES 

'KJodce of Rule-making Proceedings is hereby given by the Division of Parks and Recreation, Department of Environment 
1 y and Natural Resources in accordance with G.S. 150B-2I.2. The agency shall subsequently publish in the Register the text 
of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this 
notice. 

Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 12A .0001. .0004 - .0005; 12B .0101. .0104, .0106, 
.0203. .0401 - .0402, .0501, .0602. .0701 - .0702. .0802. .0901, .1001. .1004, .1102, .1201. Other rules may be proposed in 
the course of the nde-tnaking process. 

Authority for the rule-making: G.S. 14-410; 14-415; 113-8; 113-34; 113-35; 113-264(a); 143-21; 1438-311. 

Statement of the Subject Matter: Rules regarding the Division of Parks and Recreation 's administrative organization and 
duties, and rules regarding operation of parks and recreation areas. 

Reason for Proposed Action: Rules for the administrative organization of the Division of Parks and Recreation need to be 
amended to include park units that have been added to the system since 1983. Rides regarding the operation of parks and 
recreation areas with regard to permits, the use of metal detectors, disposal of refuse, pollution of waters, vehicle use, 
camping, sports, horses, fishing, pyrotechnics, noise, animals, photography, and the hours of operation also require revision. 

Comment Procedures: Comments should be directed to: Jim Hallsey. Parks Chief Ranger, Division of Parks and Recreation, 
12700 Bayleaf Road, Raleigh, NC 27614. 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1097 



PROPOSED RULES 



This Section contains the text of proposed niles. At least 60 days prior lo the publication of text, the agency published a 
Notice of Rule-making Proceedings, lite agency must accept comments on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 da}s for a rule that has a substantial economic impact of at least five million dollars 
($5,000,000). Statuton,- reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 



substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 



Notice is hereby given in accordance Miih G.S. 150B-21.2 
that the NC Child Care Commission intends to amend 
rules cited as 10 NCAC 3U .0102. .0201. .0204 - .0206, 
.0301 - .0302. .0401, .0403, .0505. .0508 - .0511. .0602, 
.0604. .0701 - .0705. .0707 - .0714. .0802 - .0804. .0806. 
.0901 - .0902. .1001 - .1004. .1301 - .1303. .1401. .1701 - 
.1702, .1705. .1716. .2506. .2510: repeal rules cited as 10 
NCAC 3U .0202. .0207, .0303, .0506- .0507. .1703. .1717. 
.2601 - .2612: and adopt rules cited as 10 NCAC 3U .0304. 
.0605, .1304, .1718 - .1723. Notice of Rule-making 
Proceedings was published in the Register on October 15. 
1997. 

Proposed Effective Date: July 1. 1998 

A Public Hearing will be conducted at 6:30 p.m. - 8:30 p.m. 
on January 29. 1998 and 9:00 a.m. - 1:00 p.m. on January 
30. 1998 at the Division of Child Development, Room 300, 
319 Chapanoke Road. Raleigh. NC. (919) 662-4543. 

Reason for Proposed Action: Jlie .Worth Carolina General 
Assembly enacted S.L. 97-0506 during the 1997 Legislative 
Session which revised G.S. 110, the law for child care centers 
and family child care homes. The North Carolina Child Care 
Commission has revie^ved all the ndes in Subchapter 3U and 
proposes changes needed to conform to the ne^v child care 
law. The Commission also proposes this action to ensure 
that temporary rules pertaining to outdoor area equipment 
and fiimishings currently in effect become permanent . 

Comment Procedures: Written comments for consideration 
by the Commission may be submitted to the APA Coordinator 
for the Division of Child Development at the address. Oral 
comments t?ia}' be made during the public hearing. Time 
limits for oral remarks may be imposed by the Commission 
Chairperson. Copies of the ndes may be requested by 
contacting the APA Coordinator: 

Nancy Guy 

Division of Child Development 

PO Box 29553 

Raleigh, NC 27626-0553 

(919) 662-4543 

Fiscal Note: Rule 10 .\C.4C 3U .0605 affects the 
expenditures or revenues of state and local government finds. 
All other ndes do not affect the expenditures or revenues of 
state or local government finds. None of these Rules have a 



CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE STANDARDS 

SECTION .0100 - PURPOSE AND DEFINITIONS 

.0102 DEFINTTIONS 

The terms and phrases used in this Subchapter shall be 
defined as follows except when the content of the rule clearly 
requires a different meaning. The definitions prescribed in 
G.S. 1 10-86 also apply to these Rules. 

Hi "Ag e — ap p ropriate" m e ans suitable to — the 

ch r onological — age — r ange — and — devclopmenial 
characte r istics of a s p ecific g r ou p of children. 

(1) tti "Agency" means Division of Child 
Development. Department of Health and Human 
Services Resources , located at 319 Chapanoke 
D r ive, Road. Suite 120. Raleigh, North Carolina 
27603. 

(2) t3t "Appellant" means the person or persons who 
request a contested case hearing. 

(3) t+^ "A" license means the license issued to day 
child care operators who meet the minimum 
requirements for the legal operation of a child day 
care facility pursuant to G.S. 1 10-91 and applicable 
rules in this Subchapter. 

(4) f5t "AA" license means the license issued to day 
child care operators who meet the higher voluntary 
standards promulgated by the Child ©ay Care 
Commission as codified in Section .1600 of this 
Subchapter. 

(5) iffi "Child Care Program" means a pr ovide r of 
child day care s e n.'ic e s and may consist of a single 
center or home, or a group of centers or homes or 
both, which are operated b\' one owner or 
super\ised by a common s p onso r . entii\'. 

(6) "Child care administrator" means the person 
responsible for ensuring that all applicable child 
care requirements are met, in addition to the duties 
in G.S. 110-86. 

(7) "Child day care provider" as defined by G.S. 110- 
90.2 and used in Section .2700 of this Subchapter, 
includes but is not limited to the following 
employees: facility directors, administrative staff, 
teachers, teachers' aides, cooks, maintenance 
personnel and drivers. 

(8) "Child Development Associate Credential" means 



1098 



NORTH CAROLLSA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



the national early childhood credential administered 
by the Council for Early Childhood Professional 
Recognition. 

(9) "Day ca r e cen t er" mcaiis any day care facili t y as 

defined in G.S. 110-80(3) which is autho r ized to 
provide day care t o 13 o r more child re n when any 
child p resent is preschool-age acco r ding to the 
d e finition of preschool-aged child in this Rule. 

i^ "Day care home" means any child day ca r e home in 

G.S. 110-80(4). Child ca r e arrangements excluded 
from the defini t ion of day care facility in G.S. 
1 10-80(3) arc also excluded as day care homes. 

(9) t++^ "Department" means the Department of 
Health and Human Services. Resou r ces. 

(10) "Developmentallv appropriate" means suitable to 
the chronological age range and developmental 
characteristics of a specific group of children. 

(11) f+^ "Division" means the Division of Child 
Development within the Department of Health and 
Human Services. R e sources. 

(12) t+3t "Drop-in care" means a child day care 
arrangement where children attend on an 
intermittent, unscheduled basis. 

(13) t+4) "Group" means the children assigned to a 
specific caregiver, or caregivers, to meet the 
staff/child ratios set forth in G.S. 110-91(7) and 
this Subchapter, using space which is identifiable 
for each group. 

t+5^ "Large child day care cen t e r " o r "la r ge cente r " 

means any day care facility which is authorized to 
provide care to 80 o r mo r e child r en. 

f+6) "Large child day care home" o r "large home" 

means any day ca r e facili t y as defined in G.S. 
110-80(3) which is autho r ized to rou t inely provide 
ca re to a maximum of 12 child r en when any child 
presen t is p r eschool-aged or. when all children 
pre sen t are sch o ol-aged, t o a maximum of 15 
child r en. P r ovided the app r opriate child/staff r a t i o s 
are not exceeded, t he large home may exceed t hese 
maximum ca p aci t ies by no mor e than t wo child r en: 

-(a) du r ing the school yea r fo r no more than one 

hou r immediately afte r school: and 

f&) du r ing t he two week p e r iod pr eceding and 

the t wo week period following the p ublic 
school y e ar. 
t+?t "Licensee" means the person or entity that is 
granted permission by the State of North Carolina 
to operate a day care c e nte r , child care facility. 



(14) 



'Licensing Manual" means th e document publish e d 
by the Child Day Ca r e Section which contains these 
Rules — r equi re d — by — No r th — Carolina — law; — the 
Commission and th e D ep a r tm e nt for licensu r e of 
child day care cente r s. — Th e licensing manual may 
be obtained f r om th e S e ction at the add r ess given in 
Item (2) of this Rul e . 

t+^) "Medium child day — ca r e cente r " — or — "medium 

cente r " means any day care cente r facility which is 



autho r ized to pr ovide day car e to at least 30 but no 
mo r e than 7 9 child r en. 

(15) i^m "North Carolma Early Childhood Credential" 
means the state early childhood credential that is 
based on completion of coursework and standards 
found in the North Carolina Early Childhood 
Instructor Manual published jointly under the 
authority of the Department and the North Carolina 
Community College System. These standards are 
incorporated by reference and include subsequent 
amendments. A copy of the North Carolina Early 
Childhood Credential requirements is on file at the 
Division of Child Dev e lo p ment. 31 9 Cha p anok e 
D r ive. Raleigh, North Ca r olina at the address 
given in Item (1) of this Rule and will be available 
for public inspection during regular business hours. 

(16) (2+t "Operator" means the person or entity held 
legally responsible by law as the owne r of a for the 
child day care business. The terms "operator", 
"sponsor" or "licensee" may be used 
interchangeably. 

(17) (22) "Part-time care ar r angement" care" means a 
child day care as — d e fin e d — in — GrS: — 110-80 
arrangement where children attend on a regular 
schedule but which provides care on less than a 
full-time basis. 

(18) (23) "Passageway" means a hall or corridor. 

(19) (24t "Preschooler" or "preschool-aged child" 
means any child who does not fit the definition of 
school-aged child in this Rule. 

(25) "P r ovisional License" means th e t ype of license 

issued to a cente r which does not conform in ev e iy 
re s pe c t with the standards fo r an "A" lic e ns e . 

(26) "Regist r ant" means the p er son or entity that is 

g r ant e d p ermission by the State of No r th Carolina 
to o p e r ate a day care home. 

(20) (2^ "School-aged child" means any child who is 
at least five years old on or before October 16 of 
the current school year and who is attending, or has 
attended, a public or private grade school or 
kind er garten, kindergarten: or any child who is not 
at least five years old on or before October 16 of 
that school year, but has been attending school 
during that school year in another state in 
accordance with the laws or rules of that state 
before moving to and becoming a resident of North 
Carolina: or any child who is at least five years old 
on or before April 16 of the current school year, is 
determined by the principal of tlie school to be 
gifted and mature enough to justify admission to 
the school, and is enrolled no later than the end of 
the first month of the school year. 

(21) "Seasonal Program" means a recreational program 
as set forth in CLS, I in-86(2)(b). 

(22) (28^ "Section" means Division of Child 
Development. 

(29) "Small day car e cent e r" or "small c e nte r " m e ans 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1099 



PROPOSED RULES 



any day cai e facility which is autho r ized to p rovide 
day ca r e for a maximum of 2 9 child r en. 

f3^1 "Small day care hom e " or "small home" means the 

child ca r e auaiigcments defined in G.S. 110-86(4) 
which a r e subjec t t o t he regist r a t ion r equi r ements 
s e t forth in Scciion .1700 of this Subcha p ter. 



t3+i 



(3) A representative of the section Division may make 
unannounced visits to any licensed center whenever 
the section Division receives a complaint alleging 
violation of the licensing law or the rules in this 
Subchapter, or if a representative of the section 
Division has reason to believe an emergency exists 
in the center. 



03) 



Special Provisional License" means the ty p e of 
license which ma\ be issued a day care o p e r ato r 

pursuant to the condrtions of G.S. 110-88 (6a) Authority G.S. 110-105: 143B-168.3. 
when child abuse or neglect has occu rr ed in the 
cen t e r . 

t3^ "Substitute" means any person who 
temporarily assumes the duties of a regular staff 
person for a time period not to exceed two 
consecutive months. 



■mf- 






.0202 CENTERS SUBJECT TO LICENSURE 

Any day care cente r or large day ca r e home as pr eviously 
defined in Rule .0102 of this Subchapte r which pr ovid e s car e 
on a r egula r basis of at least onc e p e r week, fo r mo r e than 
fou r hours but l e ss than 24 hou r s p e r day, regardless of the 

"Teache r " means — ttte — ca r egive r — who — has time of day and re gardless of whethe r the same o r different 

r e s p onsibility fo r planning and im p lementing the 

daily prog r am of activities for each g r ou p of 

children. 



child r en — attend — r egula r ly, — must — be — licensed, 
arrang e ments include, but are not limit e d to: 



Th e s e 



(24) "Temporary care a rr angement " means any 
child day care arrangement which provides either 
drop-in care or care on a seasonal or other part-time 
basis and is required to be regulated pursuant to 
G.S. 110-86. 



mi 



(25) 



'"^ 



Icmpo r ar}' lic e nse — m e ans the license which may 
b e issued when a licensed cente r changes location 
or changes ownership. 

(-3^ "Volunteer" means a person who works in a 
day care cente r o r day care home child care facility 
and IS not monetarily compensated by the center o r 
home, facility. 



Authoritx G.S. 110-88; 143B-168.3. 

SECTION .0200 - GENERAL PROVISIONS RELATED 
TO LICENSING CfflLD CARE CENTERS 

.0201 INSPECTIONS 

The Child Day Care Section Division shall periodically 
visit and inspect all day child care centers to insure 
compliance with North Carolina General Statutes and those 
rules and regulations adopted pursuant thereto. 

(1) A representative of the s e ction Division shall 
conduct an announced visit prior to the initial 
issuance and — r enewal of the license. The 
prospective or current licensee shall be notified in 
advance about the visit. This Rule does not apply 
to the investigation of centers that are operating 
without a license in violation of the law. 
At the beginning of each fiscal year, the section 
Division shall prepare a written plan explaining the 
guidelines for making r outine , announced and 
unannounced compliance visits to licensed day 
child care centers. The plan shall be dated and 
signed by the section chief Division director and 
shall be kept in a confidential t~ile by the s e ction 
chief, file. 



(2) 



Hi day ca r e cente r s, including those which operate fo r 

mo re than on e shift; 

(-21 nu r sen, ' schools : 

(31 p a r t-time care arrangements, including those which 

pr ovid e ca re on a s e asonal, d r o p -in. o r aft er -school 

basis as defined in Rul e .0102 of this Subcha p te r : 
t^l p re school p r ograms housed in a p ublic — school 

building, whethe r o p e r ated by the p ublic school 

system o r a pr ivat e provider; 
ffl large day ca r e homes. 



Authority G.S. 110-86(3); 143B-168.3. 

.0204 CHANGES REQUIRING ISSUANCE OF A 
NEW LICENSE 

(a) When the operator, as defined in Rule .0102, of a 
licensed day child care center changes, the new operator must 
apply for a new license at least 30 days prior to assuming 
ownership of the center. A child day care license cannot be 
bought, sold, or transferred by one operator to another. 

(b) When a licensed child day care center is to be moved 
from one location to another, the licensee must apply for a 
license for the new physical location as prescribed in Section 
.0300 of this Subchapter. The licensee must obtain the new 
license prior to occupying the new location. A child day care 
license is not transferrable from one location to another. 

(c) When a licensee desires to change the licensed capacity 
of a center, the licensee must notify the section. Division. 

(1) If the licensee wishes to increase the licensed 
capacity by using space not currently approved for 
day child care, the section Division shall provide 
the licensee with appropriate forms to request 
approval. Once the additional space is approved, a 
new license shall be issued to reflect the increase in 
licensed capacity. 

(2) If a licensee wishes to increase the center's licensed 
capacity by using space that is already approved for 
day child care, the sectitm Division shall, upon 
request, issue a new license showing the increase. 



1100 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



(3) If a licensee wishes to decrease the center's licensed 

capacity, the s e ction Division shall, upon request, 

issue a new license reflecting the decrease. 

(d) When a licensee decides to conform with requirements 

in order to remove a restriction on the age or number of 

children who can be served in the center, the licensee shall 

notify the s e ction. Division. The s e ction Division shall 

supply forms for the licensee to use to obtain approval from 

the local inspectors, if necessary. When the section Division 

is notified that the center conforms with all applicable 

requirements, a new license, without the restriction, shall be 

issued. 

Authority G.S. 110-88(8); 110-93; 143B-168.3. 

.0205 PARENTAL ACCESS 

The custodial parent, guardian or full-time custodian of a 
child enrolled in any child day care center facility o r home 
subject to regulation under Article 7 of Chapter 1 10 of the 
North Carolina General Statutes or these Rules shall be 
allowed unlimited access to the facility or home center during 
its operating hours for the purposes of contacting the child or 
evaluating the facility or home center and the care provided 
by the facility or home, center. The parent, guardian or 
custodian shall notify the on-site administrator of his or her 
presence immediately upon entering the premises. 

Authority G.S. 110-85; 110-91; 143B-168.3. 

.0206 CAPACITY OF THE CENTER 

(a) The licensed capacity shall be no greater than the 
number of children that the total primary space, as defined in 
Rule .1401, used by children can accommodate at 25 square 
feet per child. 

(b) Exc ep t as pr ovided in the definition of large home in 
Rule .0102 of this Subchapt er , the The number of children 
present at the facility center shall not exceed the licensed 
capacity of the facility, center. 

(c) The number of children occupying any room of the 
facili t y center shall not exceed the number that the primary 
space in that room will accommodate at 25 square feet per 
child except as provided in Rule .1401 of this Subchapter. 

Authority G.S. 110-88(la); 110-91(6); 143B-168.3. 



.0207 



Tht- 



SCHOOL-AGE CfflLDREN OF THE 
OPERATOR 



tec 



o p e r ato r 's own school-ag e child re n shall — not 
consid e r e d to b e en r olled in the facility iind, th ere fo r e, shall 



not be counted wh e n d e termining 
with th e rules of this Subcha p te r . 



the facility's complianc e 



Authority G.S. 110-86(3): 143B-168.3. 

SECTION .0300 - PROCEDURES FOR OBTAINING A 
LICENSE FOR A CHILD CARE CENTER 



.0301 PRE-LICENSING REQUIREMENTS 

(a) Anyone who wishes to obtain a license to operate a 
child care center should shall first request pre-licensing 
consultation on a form provided by th e s e ction, from the 
Division. 

(b) Upon receiving a com p leted request form, a 
representative of the s e ction Division shall schedule a visit 
with the person requesting consultation, consultation, unless 
the person requesting consultation meets the criteria described 
in Rule .0302(g). The p u rp ose of the visit is to r eview th e 
lic e nsing law and standa r ds and to ex p lain the licensing 
process. The s e ction's repr e sentative Division shall furnish 
the forms required to be completed and submitted in order to 
apply for a license. 

(c) The Division shall provide regularly scheduled 
licensing workshops for new and existing child care centers. 
A schedule of these workshops may be obtained from the 
Division at the address given in Rule .0102 of this 
Subchapter. 

Authority G.S. 110-88(1); 110-88(5); 143B-168.3. 

.0302 APPLICATION FOR A LICENSE FOR A 
CHILD CARE CENTER 

(a) The individual who will be legally responsible for the 
operation of the center, which includes assuring compliance 
with the licensing law and standards, shall apply for a license 
using the form provided by the section. Division. If the 
operator will be a group, organization, or other entity, an 
officer of the entity who is legally empowered to bind the 
operator shall complete and sign the application. 

(b) The applicant shall arrange for inspections of the center 
by the local sanita r ian, health, building and fire inspectors. 
The applicant shall provide an approved inspection report 
signed by the appropriate inspector to the section's Division 
representative. 

(1) 



(2) 



A provisional classification may be accepted in 
accordance with Rule .0401(1) of this Subchapter. 
When a center does not conform with a specific 
building, fire, or sanitation standard, the 
appropriate inspector may submit a written 
explanation of how equivalent, alternative 
protection is provided. The section chief Division 
may accept the inspector's documentation in lieu of 
compliance with the specific standard. Nothing in 
this Regulation is to preclude or interfere with 
issuance of a provisional license pursuant to Section 
.0400 of this Subchapter. 

ti-ii i shall comply with all othe r state laws and 
local o r dinances that a pp ly to the o p e r ation of a child 



-day 



o p e r at 
car e c e nte r . 

(c) (d) The applicant, or the person responsible for the 
day-to-day operation of the center, shall be able to describe 
the plans for the daily program, including room arrangement, 
staffing patterns, equipment, and supplies, in sufficient detail 
to show that the center will comply with applicable 
requirements for activities, equipment, and staff/child ratios 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1101 



PROPOSED RULES 



(2) 
(3) 
(4) 
(5) 
(6) 
ill 



for the trrt capacity of the facili t y center and type of license 
requested. The applicant shall make the following written 
information available to the section's rcpiTscntativc Division 
for review to verify compliance with provisions of this 
Subchapter and the licensing law: 
(1) daily schedules, 
activity plans, 
emergency care plan, 
discipline policy, 
incident reports, 
incident logs. logs. 

a copy of the certified criminal history check for 
the applicant, or the applicant's designee as defined 
in Rule .2701(g) of this Subchapter, from the Clerk 
of Superior Court's office in the county or counties 
where the individual has resided during the 
previous 12 months, 
(d) ip) The applicant shall, at a minimum, demonstrate to 
the section's Division representative that measures will be 
implemented to have the following information in the center's 
files and readily available to the representative for review: 
(1) Reco r ds on staff Staff records which include an 
application for e m p loymen t ; employment and date 
of birth: documentation of previous education, 
training, and experience; medical and health 
records; and documentation of participation in 
training and staff development activities; and 
required criminal records check documentation; 
Reco r ds on child r en Children's records which 
include an application for enrollment; medical and 
immunization records; and permission to seek 
emergency medical care; 
Daily attendance records; 

Records of monthly fire drills giving the date each 
drill is held, the time of day, the length of time 
taken to evacuate the building, and the signature of 
the person that conducted the drill; 
Records of monthly playground inspections 
documented on a checklist provided by the 
Division; and 

Records of medication administered. 
tf) (e) The section's Division representative shall measure 
all rooms to be used for day child care and shall assure that 
an accurate sketch of the center's floor plan is part of the 
application packet. The section's Division representative 
shall enter the dimensions of each room to be used for day 
child care, including ceiling height, and shall show the 
location of the bathrooms, doors, and required exits on the 
floor plan. 

t^ £jQ The sec t ion's Division representative shall make 
one or more compliance inspections of the center and 
pr emises, premises to assess compliance with all applicable 
standards. 

(1) If the center is in compliance, the r e pr esentative 
Division shall submit all insp e ction r e p o r ts, the 
floo r p lan, and any other su pp o r ting documen t s, 
along with the signed a p plication, to the section for 



(2) 



(3) 
(4) 



(5) 



(6) 



final review and issuance of issue the license. 

(2) If the center does not comply, comply with the 
standards in all r es p ects, the r epresentative shall 
submit — aH — information — listed — in — (4i — of this 
Paragraph. The the representative may recommend 
issuance of a provisional license in accordance with 
Section .0400 of this Subchapter or the 
representative may recommend denial of the 
application. Final disposition of the 
recommendation to deny is the decision of the 
section chi e f. Division. 

(3) The license shall be displayed in an area that 
parents are able to view daily. 

ftr^ l£] If the license is denied, the o p erator may A person 
shall not r ea pp ly apply for a child care facility license fo r tha t 
facility fo r at l e ast 90 days within 12 months after any child 
care facility license held by tliat person has been revoked or 
summarily suspended by the Department. If tlie person 
appeals the Department's revocation or summary suspension. 
the person shall not apply for a child care facility license 
during the appeal. If the revocation or summary suspension 
is affirmed on appeal, the petitioner shall not apply for a 
license within 12 months after from the date the letter of 
denial the final order affirming the revocation or summary 
suspension, is issued o r . if administ r ative o r judicial r eview is 
requested by the a p plicant, f r om the date the final agency 
decision o r judicial det e rmination is rendered, whichever is 
later. 

Authority G.S. 110-88(2); 110-88(5); 110-91; 110-92; i 
110-93; 110-99; 1438- 168.3. " 

.0303 RENEWAL OF A LICENSE 

ta^ — Each licensee must annually a pp ly fo r r enewal of th e 
license using forms su pp lied by the s e c t ion. 

t+) Th e s e ction shall mail the forms to the licensee 

a ppr oximately 9 days p rio r to the ex p iration dat e 
on the license. 

t^) The o p e r ato r shall notify th e local fi r e ins p ect or 

wh e n it is time fo r the facility's annual r enewal 
ins pe ction. 
(tr) — The section's repr esen t ative shall make one o r mo r e 
visits to the cen t er to det e rmin e compliance with the licensing 
standa r ds. — The fi r st of these com p liance ins p ection visits 
shall be made du r ing the 60 days imm e diat e ly pr e c e ding th e 
ex p iration date on the license. — This shall b e th e announc e d 
re n e wal visit. The r e pr esentative shall re view the r eco r ds and 
documents identified in Rule .0302(d) and (e). obse r ve in t he 
class r ooms, and pe rform oth er activiti e s nec e ssary to e valuat e 
com p liance. 

(ci When — the — Section's — r e pr esentative — docum e nts 

noncom p liance on the announced r enewal visit, based on the 
seve r ity and extent of noncom p liance, the repr esentative may 
re tu r n to t he facility at a lat er date, but pr io r to the license 
ex p i r ation — datr; — to — determine — rf — compliance — has — been 
achi e ved; advis e th e l i c e nsee to submit written verification 
that th e noncom p liance has been co rr ected; recommend 



1102 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



i ssuance of a provisional license in acco r dance with S e c t ion 
.0400 of this Subcha p te r: or r ecommend d e nial of the 

application — for — ren e wal. Firral — dis p osition — of — the 

itconimcndation to deny is the decision of the Section Chief. 
When the a pp lication for renewal of a licens e has been 
d e nied, the letter of denial shall be p osted p rominently in the 
faeility immediately upon recei p t. — The stipulations of Rule 
.0302(h) shall a p ply. 

(ti^ — When the cente r is in com p liance with licensing 
standards, the section's r e p resentative shall submit foims ajid 



documentation, — togethe r — with — the- 



igned 



supporting 

application for r enewal, to the section fo r final r eview and 

app r oval fo r r enewal of the license. 

(e) — Regardless of the reason, when an a p plication fo r 
r e newal is received by the section afte r the license ex p i r ation 
date, th e e xisting license shall r emain valid until th e s e ction 
notifies t he licensee othe r wise pursuant to the pr ovisions of 
150D-3. 

Authority G.S. 110-88(5); 110-93; 143B-168.3; 150B-3. 

.0304 ON-GOING REQUIREMENTS FOR A 
LICENSE 

(a) Each operator shall schedule a fire inspection within 12 
months of the center's previous fire inspection. The operator 
is responsible for notifying the local fire inspector when it is 
time for the center's annual fire inspection. The operator 
shall submit the original of the completed annual fire 
inspection report to the Division's representative within one 
week of the inspection visit on the form provided by the 
Division. 

(b) Each center shall be inspected at least annually for 
compliance with appropriate sanitation requirements adopted 
by the Health Services Commission as described in 15A 
NCAC 18A .2800. 

(c) A new building inspection shall not be required unless 
the operator plans to begin using space not previously 
approved for child care, has made renovations to the 
building, has added new construction, or wants to remove 
any restriction related to building codes currently on the 
license. 

(d) When the Division's representative documents 
noncompliance during a visit, the representative may: 

(1) Advise the operator to submit written verification 
that the noncompliance has been corrected: 

(2) Return to the center for an unannounced visit at a 
later date to determine if compliance has been 
achieved: or 

(3) Recommend issuance of a provisional license in 
accordance with Section .0400 of this Subchapter 
or recommend the revocation of tlie license or 
administrative actions in accordance with Section 
.2000 of this Subchapter. 

Authority G.S. 110-88(5): 110-93; 143B-168.3; 150B-3. 

SECTION .0400 - ISSUANCE OF PROVISIONAL AND 



TEMPORARY LICENSES 

.0401 PROVISIONAL LICENSES FOR FACILITIES 

(a) A provisional license may be issued in accordance with 
the provisions of G.S. 1 10-88(6) for any period of time not to 
exceed twelve consecutive months for any of the following 
reasons: 

(1) To allow a specific time period for correcting a 
violation of the building, fire, or sanitation 
requirements, provided that the appropriate 
inspector documents that the violation is not 
hazardous to the health or safety of the children but 
nevertheless necessitates a provisional classification 
until corrected. 

(2) To allow a specific time period for the center 
facility to comply fully with all licensing 
requirements other than building, fire, or 
sanitation, and to demonstrate that compliance will 
be maintained, provided that conditions at the 
cente r facifity are not hazardous to the health or 
safety of the children or staff. 

(3) To allow time for the applicant or licensee to obtain 
a declaratory ruling pursuant to Section .2000 of 
this Subchapter. 

(4) As a possible administrative action for 
substantiation of child abuse or neglect. 

(b) The provisional license may be issued upon the 
sec t ion's Division's determination that the applicant or 
licensee is making a reasonable effort to conform to such 
requirements. 

(c) The provisional license and the document describing 
the reasons for its issuance shall be posted in a prominent 
place in the cente r , facility that parents are able to view daily. 

(d) A licensee may obtain an administrative hearing on the 
issuance of a provisional license in accordance with Section 
.2000 of this Subchapter. 

Authority G.S. 110-88(6); 110-99; 143B-168.3. 

.0403 TEMPORARY LICENSES FOR CENTERS 

(a) A temporary license may be issued in accordance with 
the provisions of G.S. 110-88(10): G.S. 110-88(10) to tlie 
operator opening a new center or to the operator of a 
previously licensed center when a change in ownership or 
location occurs provided: 

(1) to the operator of a pr eviously licensed facility 
wh e n a change in ownershi p or location occu r s, 
pr ovided — the — o p e r ato r applied for a license, 
pursuant to Section .0300, and or Rule .0204(a) or 
(b) of this Subcha p te r , Subchapter prior to the 
change in status; or and 

(2) to allow an a pp licant to o p en a facility, pr ovid e d 
th e a pp licant made initial application fo r a day care 
license at least four u ' ceks p r ior to the scheduled 
o p ening date and has compli e d with th e S e ction's 
r equests fo r information to d e monst r ate p otential 
com p lianc e with th e G e ne r al Statut e s and the rules 



12:13 



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January 2, 1998 



1103 



PROPOSED RULES 



of t his Subcha pt er, and Section has not de t crmintd 
that the applican t is ineligible fo r a license, the 
center has sufficient equipment and materials to 
operate for the number of children enrolled. 

(b) The temporary' license shall be posted in a prominent 
place in the cente r , center that parents are able to view daily. 

(c) The temporary license shall expire after 9 days, six 
months, or upon the issuance of a license or provisional 
license to the operator, whichever is earlier. 

(d) An operator may obtain an administrative hearing on 
the denial of a temporary license in accordance with Section 
.2000 of this Subchapter. 

Authority G.S. 110-88(10): 110-99; 143B-168.3. 

SECTION .0500 - DEVELOPMENT ALLY 
APPROPRIATE ACTIVITIES FOR CENTERS 

.0505 DEVELOPMENTAL DAY CENTERS 

Child day care centers which meet the criteria for 
developmental day centers, as defined in 10 NCAC +8M 
■m%\ 14V .2401 (contained in APSM 35-^7 30-1. Standards 
for A r ea Programs and Thei r Con tr act Agencies, p ublished 
by — the — Division — of Rules for Mental Health. Mental 
Retardation Developmental Disabilities and Substance Abuse 
Facilities and S e rvic e s). Services, published by the Division 
of Mental Health. Developmental Disabilities and Substance 
Abuse Services), shall be determined in compliance with the 
provisions of Rules .0507 .0508 through .0511 of this 
Section by complying with the requirements for activities for 
developmental day centers set forth in 10 NCAC 18M .0707, 
.0708 and .0713. 14V .2403. 

Authority G.S. 110-91 (2), (12); 143B-168.3. 

.0506 WRITTEN SCHEDULE: CENTERS 

fr) — Cen t e r s shall have a sch e dule fo r each g r ou p of 
child r en p osted — fo r easy — r efe r ence — by — parents — and by 
ca r egiv er s. 

tb) — The schedule shall show blocks of time usually 
assign e d to ty pe s of activities and shall include p e r iods of 
time fo r both activ e p lay and quiet p lay or rest. — Blocks of 
time shall show activities that are scheduled for indoo r and 
outdoor ar e as. 

tei — The activities and allotted times r eflected in th e 
schedule shall be age a p pro pr iate fo r the child r en in th e 
group. 



in th e cen t er or included in th e p aren t handb oo k or oth e i 
o per a t ional p olicy lite r atu r e given to p arents when the child is 
enrolled. 

(tr) — The w r itten plati shall desc r ibe the ty p e of program 
offe r ed by the center and shall include a general description 
of the activities made available t o t he children. 

Authority G.S. 110-91(12); 143B-168.3. 

.0508 ACTIVITY SCHEDULES AND PLANS FOR 
CENTERS 

(a) All centers shall have a schedule for each group of 
children posted for easy reference by parents and by 
caregivers. 

(1) The schedule shall show blocks of time usually 
assigned to types of activities and shall include 
periods of time for both active play and quiet play 
or rest. 

(2) Blocks of time shall show activities that are 
scheduled for indoor and outdoor areas. 

(3) The activities and allotted times reflected in the 
schedule shall be developmentally appropriate for 
the children in care. 

(4) When children two years old or older are in care. 
the schedule shall also reflect daily opportunities 
for both free-choice and teacher-directed activities. 

tttt IM AH centers shall develop A a written plan of agc= 
developmentally appropriate activities designed to stimulate 
t+te social, emotional, intellectual and physical development 
of children shall be develo p ed for each group of children in 
care. 

(b) Oi The activity plan shall always be current and 

accessible for easy reference by parents and 

caregivers. 

fc) I2j The activity plan shall include at least one daily 

activity for each developmental goal specified in 

Paragraph fa) tb} of this Rule. Activities which 

allow children to choose to participate with the 

whole group, part of the group, or independently 

shall be identified. The plan shall reflect that the 

children have at least four different activities in 

which they may choose to participate on a daily 

basis. 

(c) The schedule and activity plan may be combined as one 

document that shall always be current and posted for easy 

reference by parents and caregivers. 



tdi — When child re n two 



years 

schedule — shaH — aho — r eflect — daily — op p ortuniti e s — ftn — both 
f r ee-choice and teache r -di re cted activities. 

Authority G.S. 110-91 (2), (12); 143B-168.3. 

.0507 ACTIVITY PLAN: SMALL CENTERS 

ts) — Pu r suant to G.S. 110- 9 1(12). each small day care 
center shall hav e a w r itt e n plan of age-a ppr o p riate activities 
which is mad e available to p arents. The p lan may be posted 



old o r olde r are in care, th e Authority G.S. 110-91(2). (12); 143B-168. 3. 



.0509 ACTIVITIES: GENERAL REQUIREMENTS 
FOR CENTERS 

(a) Each center pr oviding care to child re n ag e d two y e ars 
and olde r shall have developmentally appropriate equipment 
and materials available accessible on a daily basis. The 
equi p m e nt and mate r ials shall be appro pr iat e fo r the ages of 
the child re n in car e . 

(b) The materials and environment shall be sufficient m 



1104 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



quan t ity to provide a variety of play experiences which 
stimulate promote the children's social, emotional, 
intellectual and physical development, development and the 
ma t erials shall be easily accessible to t he child r en. 

(c) Teacher-made and home-made equipment and materials 
may be used if they are safe and functional. Materials and 
equipment that are accessible to children shall not be coated 
or treated with, nor shall they contain, toxic materials such as 
creosote, pentacholorphenol, tributyl tin oxide, dislodgeable 
arsenic and any finishes which contain pesticides. 

(d) T^gc Developmentallv appropriate equipment and 
materials shall be provided for a variety of outdoor activities 
which allow for vigorous play and large muscle development. 
Each child shall have the opportunity for outdoor play each 
day that weather conditions permit. The facility center shall 
provide space and time for vigorous indoor activities when 
children cannot play outdoors. 

Authority G.S. 110-91 (2), (12); 143B-168.3. 

.0510 ACTIVITY AREAS: PRESCHOOL CHILDREN 
TWO YEARS AND OLDER 

(a) Each small, medium and large day care center shall 
have equipment and materials available in activity areas on a 
daily basis. Centers with a licensed capacity of six to 12 
children located in a residence are not required to have 
activity areas, but must have equipment and materials 
available daily for the children in care. 

(b) An activity area is an identifiable space which is 
accessible to tlie children and where related equipment and 
materials are kept in an orderly fashio n, fashion whi c h is 
accessible t o the child r en. 

(c) Each activity area shall contain enough materials to 
allow three related activities to occur at the same time. The 
materials and equipment shall be in sufficient quantity to 
allow at least three children to use the area regardless of 
whether the children choose the same or different activities. 

(d) Each center shall make at least four of the activity 
areas listed in Paragra p h (e) of t his Rule G.S. 110-91(12) 
available daily to preschool children two years or older as 
follows: 

(1) Medium and la r ge cente r s Centers with a licensed 
capacity of 30 or more children shall have at least 
four activity areas available in the space occupied 
by each group of children. 

(2) Small day care cente r s Centers with a licensed 
capacity of less than 30 children shall have at least 
four activity areas available daily. In small cen t e r s, 
se p arate Separate groups of children may share use 
of the same activity areas. 

(3] Centers with a licensed capacity of six to 12 

children located in a residence shall have at least 

four types of acti\iiies available daily. 

fe) — Wheneve r on e of thes e activity a re as is available fo r 

use by child r en, it shall contain, at a minimum, t h e items 

s p ecified in this Rule as follows : 

t+1 Art and othe r c r ea t ive play materials: 



(A) Each art activity area shall contain c r ayons 

and p lain p a p e r , p ast e or glue, and p aint and 
p aint b r ushes. 

tB) In addition, each art activity ar e a shall have 

t h r ee of the following items availabl e to th e 
childr e n : scisso r s, const r uction p ap e r, e asel, 
clay or p laydough. o r collag e mate r ials. 
(2^ Child r en's books: 

{A^ Each book activity area shall have at leas t 

two age-appropriate books available fo r each 
child in the g r ou p (as defined in Rul e .0102 
of this Subcha p te r ) to which the activity a r ea 
is accessible. — Books in othe r activity ar e as 
acc e ssibl e to the same g r ou p of children may 
be — counted — in th e — minimum numbe r of 
re qui r ed books ; 

(B^ The cente r shall have one book available to 

e ach child enrolled in th e c e nter; o r 

(€) In addition to books, the cente r shall make 

availabl e at least two oth er it e ms which ar e 
designed to promote language develo p ment, 
such as puppets, flann e l boards (o r similar 
it e ms) and a ppr o pr iate accesso r ies, p ictu r es, 
o r language t a p es. 
(3-) Blocks and block building accesso r i e s : 

tA) Each block activity a r ea shall contain a 

minimum of 9 blocks cons i sting of unit 
blocks or table blocks, or a combination of 
the two, in at least th r ee diffe r ent sha pe s and 
sizes. 

(B) In addition, th e block area shall contain a t 

leas t two diffe r ent ty p es of block-building 
accesso r ies, — stich — as — vehicles, — animals, 
human figu re s, o r fenc e s. 
(4) Mani p ulative mate r ials : 

tA^ Each mani p ulativ e activity area shall con t ain 

a variety of mani p ula t ive mate r ials designed 
to p romot e d e velo p ment of small muscle 
coo r dination. 

(Bi Each mani p ulative activity area shall have at 

least one item or set of items for each two 
child re n in th e g r ou p (as defined in Rule 
.0102 — of this — Subcha p te r ) — to which t he 
activity area is accessible. — The r e shall be a 
minimum of t e n it e ms or s e ts of items in 
each activi t y a r ea. 
(5) Housekeeping and d r amatic p lay mate r ials : 

(A-^ Each housekee p ing ac t ivi t y ar e a shall have a 

stu r dy — child-siz e d — ptay — stove, — tabl e and 
chairs, and dolls. 

ffi) In addition, the activity area shall contain at 

least th r ee of the following items : — stu r dy 
piay — sink:; — piay — r efrige r ato r , — re alistic 
accesso r ies — tn — include — pots — and — p ans, 
ut e nsils, dishes, doll b e d, full-length mi rr o r . 
doll clothes and linens, or dress-up clothes. 
ff) £e) In addition to the activity areas which are available 



12:13 



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January 2, 1998 



1105 



PROPOSED RULES 



each day, each center shall have materials and equipment in 
sufficient quantity, as described in Paragraph (c) of this Rule, 
to ensure that activities are made available at least once per 
month in each of the five program activitv areas listed m 
P,ii,ig i aph(c). G.S. 110-91(12). 

tgt iSl Each center shall provide materials and 
opportunities for music and rhythm activities, science and 
nature activities, and sand and water play for each group of 
children at least once per month. 

Authority G.S. 110-91(6). (12): 143B-168.3. 

.05 1 1 ACTIVITIES FOR CHILDREN UNDER TWO 
YEARS OF AGE 

(a) Each center providing care to infants and toddl er s shall 
have three different age developmentallv appropriate toys and 
activities for each child unde r the age of two yea r s, to 



-ttge 
promote the child's physical, emotional, intellectual and 
social well-being including appropriate books, blocks, dolls, 
pretend play materials, musical toys, sensory toys, and fine 
motor toys. 

(1) The materials shall be kept in an identifiable space 
where related equipment and materials are kept in 
identifiable groupings and must be made available 
to the children for a substantial ponion of each day . 

(2) The materials shall be offered in sufficient quantity 
to allow all children to use them at some point 
during the day and to allow for a range of choices 
with duplicates of the most popular toys. 

(3) Caregivers shall make provisions for the promotion 
of physical development for a substantial portion of 
the day which shall i nclude varied, developmentallv 
appropriate physical activities. A safe clean, 
uncluttered area shall be available for infants to 
crawl or creep and for toddlers to move around. 
Hands-on experiences, including both familiar and 
new activities, shall be provided to enable the 
infant or toddler to learn about himself and the 
world. 

The center shall provide time and space for sleeping, 
toileting, diaper changing, and playing according to 
each child's individual need. 

(c) The caregivers shall pr ovide o pp o r tunities fo r f r equent 
inte r action between the ca r egive r and each child, interact in a 
positive manner with each child every day. 

(1) Caregivers shall respond to each child's good 
behavior and positive interaction with other 
children by smiling, verbal praise and positive 
touch. 

(2) Caregivers shall respond promptly to an infant or 
toddler's physical and emotional needs, especially 
when indicated by crying through actions such as 
but not limited to the following: feeding, 
diapering, holding, positive touching, smiling, 
talking and eve contact. 

(3) The caregiver shall recognize the special difficulties 
of infant and toddler separations and assist families. 



ill 



(b) 
eating. 



infants, and toddlers to make the transition from 
home to center as gently as possible, such as a 
phased-in orientation process to allow infants and 
toddlers to experience limited amounts of time at 
the center before becoming fully integrated. 

(4) A caregiver or team of caregivers shall be assigned 
to each infant or toddler as the primary caregiverts) 
who shall be responsible for care the majority of 
the time. 

(5) The caregiver shall make provision for constructive 
guidance and the settin g of clearly defined limits 
which foster the infant's or toddler's ability to be 
self-disciplined, as appropriate to the child's age 
and development. 

(6) In drop-in facilities, centers, every effort shall be 
made to place an infant or toddler, who uses the 
center frequently, with the same caregiver. 



and (d) Infants shall have th e i r p ositions and locations changed 

th r oughout the day and shall hav e f r equent o pp o r tunities each 
day to be ou t side the c r ib o r p lay p en in addition to the tim e 
s p ent a tte nding to th e ir physical care. 

(e) Each child shall have the opportunity to be outdoors 
daily when weather conditions permit, permit for the 
following periods of time in full day programs: children 
under one year old for no less than one-half hour and over 
one year old for no less than one hour. 

(f) Child r en shall be toilet t r ained acco r ding to individual 
r eadin e ss. 



Authority G.S. 110-91 (2), (12); 143B-168.3. 

SECTION .0600 - SAFETY REQUIREMENTS FOR 
CHILD CARE CENTERS 

.0602 CONDITION OF ESfDOOR EQUIPMENT AND 
FURNISHINGS 

(a) All equipment and furnishings shall be in good repair 
and shall be maintained in useable condition. All 
commercially manufactured equipment and furnishings shall 
be assembled and installed according to procedures specified 
by the manufacturer. All equipment and fu r nishings shall b e 
in good r e p ai r and shall be maintained in useable condition. 

(b) Equipment and furnishings shall be sturdy, stable, and 
free of hazards that may injure children including sharp 
edges, lead based paint, loose nails, and splinters, 
pr ot r usions, p inch and crush p oints, unca ppe d sc re ws and 
oth er hazards that may inju r e child r en, splinters. 

(c) All broken equipment or furnishings shall be removed 
from the premises immediately or must b e sto re d so that th e y 
ar e not acc e ssibl e made inaccessible to the children. 

t^^ — All equi p m e nt and su r facing o r de re d, const r uct e d o r 
i n stalled p rio r to Januai^ — h — 1996 shall conform to U S 
Consume r Products Safety Commission (USCPSC) guidelines 
fo r playg r ound saf e ty, including subsequent amendments, by 
Janua r y 1, — 19 9 9. — All equipm e n t and su r facing o r de r ed, 
constructed o r installed afte r Janua r y 1, 1 99 6 shall conform 
to USCPSC guidelines, including subsequent amendments. A 



1106 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



Lupy of the USCP5C Handbook for Public Playg r ound Safety 
tan be obtained at no chai - gc by writing USCPSC, Office of 
Informa t ion and Public Affairs, Washington, DC. 20207. 

(e) Gravel shall not be used as a surfacing mate r ial if the 
aica will be used by children under th r ee years of age. 

Authority G.S. 110-91(6); I43B-168.3. 

.0604 GENERAL SAFETY REQUIREMENTS 

(a) Potentially hazardous items, such as firearms and 
ammunition, hand and power tools, nails, chemicals, lawn 
mowers, gasoline or kerosene, archery equipment, propane 
stoves, whether or not intended for use by children, shall be 
stored in locked areas or with other appropriate safeguards, or 
shall be removed from the premises. 

(b) Electrical outlets not in use which are located in space 
used by the children shall be covered with safety plugs unless 
located behind furniture or equipment that cannot be moved 
by a child. 

(c) Electric fans shall be mounted out of the reach of 
children or shall be fitted with an appropriate mesh guard to 
prevent access by children. 

(d) All small electrical appliances shall be used only in 
accordance with the manufacturer's instructions. 

(e) Electrical cords shall not be accessible to infants and 
toddlers. Extension cords, except as approved by the local 
fire inspector, shall not be used. Frayed or cracked electrical 
cords shall be replaced. 

(f) All materials used for starting fires, such as matches 
and lighters, shall be kept in locked storage or shall be stored 
out of the reach of children. 

(g) Smoking shall not be permitted in space used by 
children when children are present. All smoking materials 
shall be kept in locked storage or out of the reach of children. 

(h) Fuel burning heaters, fireplaces and floor furnaces 
shall be provided with a protective screen attached securely to 
substantial supports to prevent access by children and to 
prevent objects from being thrown into them. 

(i) Plants that are toxic shall not be in indoor or outdoor 
space that is used by or is accessible to children. 

(j) The outdoor play area shall be protected by a fence or 
other protection. The height shall be a minimum of four feet 
and the top of the fence shall be free of protrusions by 
January 1, 1999. The requirement disallowing protrusions 
shall not apply to fences six feet high or above. The fencing 
shall exclude fixed bodies of water such as ditches, quarries, 
canals, excavations, and fish ponds. Gates to the fenced 
outdoor play area shall remain securely closed while children 



occupy the area. When the facility center uses areas outside 
the fenced outdoor play area for children's activities or takes 
children off the premises for play or outings, the parent of 
each child shall give written permission for the child to be 
included in such activities. The permission may be; 

(1) a one-time, blanket permission for all activities; 

(2) a one-time, blanket permission for a specific 
activity at any time; or 

(3) a one-time permission for a specific activity at a 
designated time. 

The facility center shall maintain the signed permission in the 
child's record. When children are taken off the premises, 
staff accompanying the children shall have a list of the names 
of all children participating in the outing. 

(k) Air conditioning units shall be located so that they are 
not accessible to children or shall be fitted with a mesh guard 
to prevent objects from being thrown into them. 

(1) Gas tanks shall be located so they are not accessible to 
the children or shall be in a protective enclosure or 
surrounded by a protective guard. 

(m) Cribs and playpens shall be placed so that the children 
occupying them shall not have access to cords or ropes, such 
as Venetian blind cords. 

(n) Children shall not be allowed to play on outdoor 
equipment that is too hot to touch. 

(o) The indoor and outdoor premises shall be checked 
daily for debris, vandalism and broken equipment. Debris 
shall be removed and disposed of appropriately. 

(p) The playground surface area shall be checked at least 
weekly to assure that surface material is maintained to assure 
continued resiliency. 

(q) Following completion of safety training by the 
administrator or other staff person as required by Rule 
.0705(f) .07Q5(e) of this Subchapter, a monthly playground 
inspection shall be conducted and a record of each inspection 
shall be completed. This staff person shall use a playground 
inspection checklist provided by the Division. The checklist 
shall be signed by the person who conducts the inspection and 
shall be maintained in the facility's center's files for review 
by a r e p resentatives representative of the Division. 

(r) Plastic bags, materials that can be easily torn apart such 
as Styrofoam and foam rubber, and toys and toy parts small 
enough to be swallowed shall not be accessible to children 
under three years of age. Latex and rubber balloons shall not 
be accessible to children under five vears of age. 

Authority G.S. 110-85(1); 1 10-91 (3). (6); 143B-168.3. 



.0605 CONDITION OF OUTDOOR PLAY EQUIPMENT 

(a) All equipment shall be in good repair and shall be maintained in useable condition. All commercially manufactured 
equipment shall be assembled and installed according to procedures specified by the manufacturer. 

(b) Equipment shall be sturdy, stable, and free of hazards that are accessible to children during normal supervised play 
including sharp edges, lead based paint, loose nails, splinters, protrusions, pinch and crush points. 

(c) All broken equipment shall be removed from the premises immediately or made inaccessible to the children. 

(d) Any openings in equipment, steps, decks and handrails shall be smaller than 3 ViZ or greater than 9^ to prevent 
entrapment. 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1107 



PROPOSED RULES 



(e) All upright angles shall be greater than 55 " to prevent entrapment and entanglement. 

(f) All stationary outdoor equipment shall be firmly anchored over a resilient surface. Footings which anchor equipment 
shall not be exposed. Loose surfacing material shall not be installed over concrete. The depth of the surfacing that is required 
shall be based on the critical height of the equipment as indicated in the chart in this Paragraph. The critical height is defined as 
the maximum height a child may climb, sit or stand. Acceptable materials to be used for surfacing include the following: wood 
mulch, double shredded bark mulch, uniform wood chips, fine sand, coarse sand, fine gravel and medium gravel. 

Critical Heights of Playground Equipment for Various Types 
and Depths of Resilient Surfaces 





Wood 
Mulch 


Double 
Shredded 
Bark 
Mulch 


Uniform 

Wood 

Chips 


Fine Sand 


Coarse 
Sand 


Fine 
Gravel 


Medium 
Gravel 


Equipment 
Height 






Uncompre! 


ised Depths of Material 






five feet or less 


6 inches 


6 inches 


6 inches 


6 inches 


6 inches 


6 inches 


6 inches 


SIX feet 


6 inches 


6 inches 


6 inches 


12 inches 


12 inches 


6 inches 


12 inches 


seven feet 


6 inches 


9 inches 


9 inches 


12 inches 


N/A* 


9 inches 


N/A* 


eight feet 


9 inches 


9 inches 


12 inches 


12 inches 


N/A* 


12 inches 


N/A* 


nine feet 


9 inches 


9 inches 


12 inches 


12 inches 


N/A* 


12 inches 


N/A* 


ten feet 


9 inches 


9 inches 


12 inches 


N/A* 


N/A* 


12 inches 


N/A* 


eleven feet 


12 inches 


12 inches 


12 inches 


N/A* 


N/A* 


N/A* 


N/A* 



*This type of material is not allowed due to lack of scientific testing of shock-absorbing properties at this height. 



Other materials that have been certified b^ the manufacturer 
to be shock-absorbing resilient material in accordance with 
ASTM Standard 1292. may be used only if installed, 
maintained and replaced according to tlie manufacturer's 
instructions. Gravel shall not be used if the area will be used 
by children under three years of age. 

(g) The resilient surfacing shall extend beyond the external 
limits of tlie equipment for a minimum of six feet. The area 
which is required to have the resilient surfacing is the area 
under and around the equipment where the child is likely to 
fall and it is called the fall zone. Fall zones may overlap in 
three situations: between two swing structures, around spring 
rockers, or around equipment that is iess than 24 inches in 
height. 

(h) Swings shall have resilient surfacing that extends two 
times the length of the pivot point to tlie surface below. The 
surfacing shall be to the front and rear of the swing. 
Enclosed tot swings shall have resilient surfacing that extends 
two times the length of the pivot point to tlie bottom of the 
swing seat. The surfacing shall be to tlie front and rear of the 
swing. Tot swings are defined as those enclosed swing seats 
used solely by children one year of age and under. Tire 
swings shall have resilient surfacing that extends a distance of 
six feet plus the measurement from the pivot point to the 
swing seat and six feet to tlie side of the support structure. 

£il Swing seats shall be made of plastic or soft or flexible 
material. 

(j) Elevated platforms shall have a guardrail or protective 
barrier, depending upon the height of the platform and the 
age of children that will have access to the piece of 
equipment. All sides of platforms shall be protected except 



for tlie area which allows entry or exit. Guardrails shall 
prevent inadvertent or unintentional falls off the platform. 
Protective barriers shall prevent children from climbing over 
or through the barrier. The critical height for a platform with 
a protective barrier is tlie platform surface: the critical height 
for a platform with a guardrail is the tog of tlie guardrail. 
Measurements for the guardrails and protective barriers are 
stated below: 

(1) Equipment used by preschool and school-age 
children: 

(A) Guardrails - an elevated surface that is more 
than 20 inches and no more than 30 inches 
above the underlying surface shall have a 
guardrail. The minimum height of the top 
surface of the guardrail shall be at least 38 
inches high and the lower edge shall be no 
more than 23 inches above the platform. 

(B) Protective Barriers - an elevated surface that 
is more than 30 inches above the underlying 
surface shall have a protective barrier. The 
minimum height of the tog surface of the 
protective barrier shall be at least 38 inches 
high. 

(2) Equipment used exclusively by preschool children: 
(A) Guardrails - an elevated surface that is more 

than 20 inches and no more than 30 inches 
above the underlying surface shall have a 
guardrail. The minimum height of t]ie top 
surface of tlie guardrail shall be at least 29 
inches high and the lower edge shall be no 
more than 23 inches above the platform. 



1108 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



(B) Protective Barriers - an elevated surface that 
is more than 30 inches above the underlying 
surface shall have a protective barrier. The 
minimum height of tlie tog surface of the 
protective barrier shall be at least 29 inches 
high. 
(3) Equipment used exclusively by school-age children: 

(A) Guardrails - an elevated surface that is more 
than 30 inches and no more than 48 inches 
above the underlying surface shall have a 
guardrail. The minimum height of the top 
surface of the guardrail shall be at least 38 
inches high and the lower edge shall be no 
more than 26 inches above the platform. 

(B) Protective Barriers - an elevated surface that 
is more than 48 inches above the underlying 
surface shall have a protective barrier. The 
minimum height of the to£ surface of the 
protective barrier shall be at least 38 inches 
high. 

(k) All equipment and surfacing ordered, constructed or 
installed on or after October L, 1997 shall conform to all the 
requirements in this Rule. All equipment and surfacing 
ordered, constructed, or installed prior to October L, 1997 
shall conform to Paragraphs (a) through (c) of this Rule. All 
equipment and surfacing ordered, constructed, or installed 
prior to October J^ 1997 shall conform with Paragraphs (d) 
through (jj of this Rule by January 1. 2000. 

Authority G.S. 110-91(6); 143B-168.3. 

SECTION .0700 - REQUIREMENTS FOR CENTER 
STAFF 

.0701 HEALTH STANDARDS FOR STAFF 

(a) Prior to the time Within 60 days of the date of 
employment, all personnel, including the director, shall 
furnish a statement, signed by a licensed physician or an 
authorized health professional under his/her supervision, that 
indicates that the person is emotionally and physically fit to 
care for children. The medical statement shall be obtained 
within 12 months prior to the date of employment. For the 
purposes of this Rule, an authorized health professional 
means a nurse practitioner or physician assistant currently 
approved to perform medical acts by the North Carolina 
Board of Medical Examiners. 

(b) The section Division, or the director of the day child 
care center, may request another evaluation of an employee's 
emotional and physical fitness to care for children when there 
is reason to believe that there has been deterioration in the 
person's emotional or physical fitness to care for children. 



The section 



may r equest anothe r evaluation of the cent e r 
di r ector's — e motional — and — physical — fttness — when — deem e d 
nccessai7 . 

(c) An annual A test showing each employee, including the 
director, to be free of active tuberculosis is r equi r ed, required 
prior to employment. The results indicating the individual js 



free of active tuberculosis shall be obtained within 12 months 
prior to the date of employment. 

(d) Each employee, including the director, shall also 
annually submit a medical statement from a licensed physician 
or authorized health professional as defined in (a) of this 
Rule, or must complete a health questionnaire giving 
information about the status of his/her h e alth, health on a 
form provided by the Division. This qu e stionnai r e will be 
pr e p ared by the Section and approved by the Child Day Care 
Commission. 

(e) Staff medical statements, proof of annual a tuberculosis 
t e sts, test, and completed health questioimaires shall be 
included in the employee's individual personnel file in the 
center. 

£f) Emergency medical care information shall be on file for 
each individual staff person. That information shall include 
the name, address, and telephone number of the person to be 
contacted in case of an emergency, the responsible party's 
choice of health care provider, and preferred hospital: any 
chronic illness the individual has and any medication taken 
for that illness: and any other information that has a direct 
bearing on assuring safe medical treatment for the individual. 
This emergency medical care information shall be on file in 
the center on the staff person's first day of employment. 

Authority G.S. 110-91(1), (8). (9); 1438- 168. 3. 

.0702 STANDARDS FOR SUBSTITUTES AND 
VOLUNTEERS 

(a) The substitute staff and volunteers who are counted in 
the child day care staff/child ratio shall comply with the 
health standards contained in this Section. 

(b) All substitutes and volunteers not included in the child 
day care staff/child ratio shall complete the health 
questionnaire described in Rule .0701 of this Section prior to 
coming into contac t with childr e n at the center the first day of 
work and will complete a health questionnaire annually 
thereafter as long as they continue to work in the center. 

(c) A test showing each substitute and volunteer is free of 
active tuberculosis is required prior to tlie first day of work. 
The results of the test shall be obtained within 12 months 
prior to employment or beginning the volunteer activity. 

(d) The age of substitute staff and volunteers shall be 
verified prior to the first day of work by documenting the 
substitute staff or volunteer's date of birth in the individual's 
record. Any substitute teacher shall be at least 18 years old 
and literate. 

(e) Emergency medical care information as described in 
Rule .0701(f) of this Section shall be on file for all substitutes 
and volunteers on the person's first day of work. 

Authority G.S. 110-91(1), (8), (9); 143B-168.3. 

.0703 GENERAL STATUTORY REQUIREMENTS 

(a) Staff counted toward meeting the staff/child ratio 
requirements set forth in Rules .0712 and .0713 of this 
Section shall meet the requirements of G.S. 110-91(8). No 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1109 



PROPOSED RULES 



one under 18 years of age shall have full responsibility for or 
be left in charge of a group of children. 

(b) Anyone who is at least 13 years of age, but less than 
16 years of age, may work in a day child care center on a 
volunteer basis, as long as he or she is supervised by and 
works with a required staff person who is at least 21 years of 
age, and also meets the health standards for volunteers found 
in Rule .0702 of this Section. No one younger than 16 years 
old shall be left alone with children nor counted toward 
meeting the required staff/child ratio. 

(c) The provisions of G.S. 110-91(8) which exclude 
persons with certain criminal records or personal habits or 
behavior which may be harmful to children from operating or 
being employed in a day child care facility center are hereby 
incorporated by reference in — accordanc e — wttlT — StSt 
1 SOD- 14(c) and shall also apply to any person on the premises 
with the operator's permission when the children are present. 
This exclusion does not include parents or other persons who 
enter the facili t y center only for the purpose of performing 
parental responsibilities; nor does it include persons who 
enter the facility center for brief periods for the purpose of 
conducting business with the operator and who are not left 
alone with the children. 

(d) The provisions of G.S. 110-91(8) which require a child 
care administrator to obtain a North Carolina Early 
Childhood Administration Credential or ks equivalent, and a 
lead teacher to obtain a North Carolina Early Childhood 
Credential or ks equivalent are hereby incorporated by 
reference. Within six months of an individual assuming lead 
teacher or child care administrator duties, each center shall 
maintain the following information in the individual's staff 
record: 

(1) a copy of the credential certificate: or 

(2) a copy of notification from the Division that the 
individual meets the equivalency or that the 
individual does not meet the equivalency and must 
enroll in coursework: or 

(3) a dated copy of the request submitted by the 
individual to the Division for the assessment of 
equivalency status or the opportunity to test out of 
the credential coursework: or 

(4) documentation of enrollment in credential 
coursework. 

fe) If the individual does not yet meet the staff 
qualifications required by G.S. 1 10-91(8) when assuming 
lead teacher or administrative duties, the individual shall 
submit the following information to the Division within six 
months of assuming the duties: 

(1) a request to test out of credential coursework on a 
form provided by the Division: or 

(2) application for equivalency on a form provided by 
the Division, with documentation of completion of 
the coursework or credential to be considered for 
equivalency as required by the Division. 

(f) When an individual has responsibility both for 
administering the child care program and for planning and 
implementing the daily activities of a group of children, the 



requirements for a child care administrator in this Section 
shall apply, except for centers with a licensed capacity of six 
to 12 children located in a residence, in which case the 
requirements for a lead teacher in this Section shall apply. 

Authority G.S. 110-85; 110-91(8); 143B-168.3. 

.0704 PRESERVICE REQUIREMENTS FOR 
ADMINISTRATORS 

A child care administrator who has not yet met the staff 
qualifications required by G.S. 110-91(8) shall meet the 
following staff requirements. 

(1) tsi The on-site child care administrator who has 

ov er all re s p onsibility for p lanning and 

administe r ing the child car e program as defined in 
Rule .0102 of this Subchapter shall meet the 



following requirements: 



and be lite r a t e; and 



(^ 



(^ 



t+J B e at l e ast 2 1 years of ag e 

(a) Have either a high school o r g e n er al 
education di p loma: diploma or its equivalent: 
and 

(b) Have t wo y e ars one year of full-time 
verifiable work experience in a child day 
care center or two years of full-time 
verifiable work experience as a licensed 
family child care home operator; early 

childhood wo r k ex p erience; or an 

und er g r aduat e , g r aduate, o r associate deg r ee, 
with at leas t — 12 s e m e ster hours in child 

development. — child — p sychology, early 

childhood e ducation o r di r ectly related field; 

OT a Child Development Associate 

C re d e ntial; o r completion of a community o r 
technical college cu rr iculum pr ogram in the 
area of child care o r early childhood; o r one 
year of fiiU-timc verifiable child day car e o r 
e arly childhood wo r k experience and a No r th 
Carolina Early Childhood C r edential; and 
Have at least a North Carolina Early 
Childhood Credential or its equivalent; and 
(d) Have verification of having successfully 
com p leted, — or — be — cu rr ently — enrolled 



£cl 



i4i 



-or — be — cu rr ently — enrolled — mr 
successful completion of 2 semester credit 
hou r s, hours o r 32 clock hou r s, of t r aining 
coursework in the area of early childhood 
child care program administration; or, have 
one year experience performing 
administrative r es p onsibilities ; 

responsibilities, o r , have one year ex per i e nce 
performing — administ r ative — r es p onsibilities 
and have anothe r full-time staff p e r son, who 
meets (1) th r ough (3) of this Parag r a p h who 
is r es p onsible fo r p lanning and im p l e menting 
the daily pr og r am at the cente r to comply 
with Sections .0500 and .0600 of this 
Subchapt e r. 
(2) tb) Administrative preservice requirements may be 



1110 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



shared between two individuals, such as when The 
an administrator of a child day care program who 
does not routinely work on site, or who when an 
administrator is responsible for more than one child 
day care arrangemen t , arrangement, provided: 
shaH — have — v er ification — of having — succ e ssfully 
com p leted, o r be currently en r olled in, 2 s e meste r 
hours, or 32 clock hours, of t r aining in child ca r e 
r og r am — administ r ation : — on — have — one — vear 



performing 



administ r ative 



prog- 

experience 

responsibilities and have at least one full- t ime staff 
p e r son on site at each center who m ee ts th e 
r e qui r ements of (1) through (3) of Paragraph (a) of 
this Rule. 

(a) The individual who is not routinely on site 
or who is responsible for more than one 
child care arrangement shall: 
ti] have a high school diploma or its 

equivalent: and 
(ii) have at least one year of 
administrative experience, or have 
verification of successful completion 
of 2 semester credit hours of 



tbj 



coursework in early childhood 
program administration: and 

The individual who is on-site at each center 

shall 



be responsible for planning and 
implementing the daily program at tlie center 
to comply with Sections .0500 and .0600 of 
this Subchapter and shall: 
(i) be a full-time staff person: and 
(ii) have a high school diploma or its 

equivalent: and 
(iii) have at least a North Carolina Early 
Childhood Credential or its 
equivalent. 
fc) £3} Any person who is at least 21 years old and 
literate who was employed as an on-site 
administrator in a day child care program on or 
before September 1, 1986, shall be exempt from 
the provisions of Paragraphs (a) and (b) of this 
Rule. 

Authority G.S. 110-91(8): 143B-168.3. 



.0705 SPECIAL TRAINING REQUIREMENTS 

(a) At least one staff member shall be knowledgeable of and able to recognize common contagious and infectious diseases. 
symptoms of illness. 

(b) Staff who have completed within the last three years a course in basic first aid approved by the Division in th e last thr ee 
years shall be present at the facili t y center at all times children are present. The number of staff required to complete the course 
shall be based on the number of children present in the facility center as shown in the following chart: 

Number of children present Number of staff trained in first aid required 

1-29 I staff 

30-79 2 staff 

80 and above 3 staff 



Verification of each required staff person's completion of this 
course shall be maintained in the person's individual 
personnel file in the facility, center. The basic first aid 
course at a minimum shall address principles for responding 
to emergencies, rescue breathing, and techniques for handling 
common childhood injuries, accidents and illnesses such as: 
choking, bums, fractures, bites and stings, wounds, scrapes, 
bruises, cuts and lacerations, poisoning, seizures, bleeding, 
allergic reactions, eye and nose injuries and sudden changes 
in body temperature. 

(c) A first aid information sheet shall be posted in a 
prominent place for quick referral. Co p ies of this An 
acceptable form may be requested free of charge from the 
Medical Society of the State of North Carolina, P.O. Box 



organizations approved by the Division, within the last 12 
months. Other organizations will be approved if the Division 
determines that the courses offered are substantiallv 
equivalent to those offered by the American Red Cross. 
Successfully completed is defined as demonstrating 
competency, as evaluated by the instructor, in performing 
CPR. The course shall provide training in CPR appropriate 
for the ages of children in care. Documentation of successful 
completion of the course from the American Heart 
Association or Association, the American Red C r oss Cross. 
or other organization approved by the Division shall be on 
file in the facility, center. 

(e) Staff shall complete at least four clock hours of training 
in safety approved by the Division. The r e shall be at least 
27167. Raleigh, No r th Carolina, — 2761 1. North Carolina two staff, including the administ r ato r , who have com p leted at 



Child Care Health and Safety Resource Center by calling J^ 
800-CHOOSE-l. 

(d) Each day child care facility center shall have at least 
one person on the premises at all times who has successfully 
completed within the last 12 months a cardiopulmonary 
resuscitation (CPR) course provided by either the American 
Heart Association or the American Red Cross or other 



l e ast fou r clock hours of training in safety. At a minimum, 
this training shall address playground safety hazards, 
playground supervision, maintenance and general upkeep of 
the outdoor area, and age and developmentally appropriate 
playground equipment. Each day care facility shall have until 
Janua r y 1, 1997 fo r the r equi r ed numbe r of staff p eo p le to 
obtain this t r aining. — Administ r ato r s hi r ed afte r July 1, 1996 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1111 



PROPOSED RULES 



shall havt six mon t hs from t lic date of employmen t t o obtain 
the t r aining. Staff counted to comply with this Rule shall 
have six months from the date of employment, or from the 
date a vacancy occurs, to complete the required safety 
training. The number of staff required to complete this 
training shall be as follows: 

(1) In centers with a licensed capacity of less than 30 
children, at least one staff person shall complete 
this training. 

(2) In centers with a licensed capacity of 30 or more 
children, at least two staff, including the 
administrator, shall complete this training. 

Authority G.S. 110-91(1), (8): 143B-168.3. 

.0707 IN-SERVICE TRAINING REQUIREMENTS 

(a) Each day child care center shall provide, or arrange for 
the provision of, training for staff to assure that each new 
staff person who has contact with the children will receive a 
minimum of 10 clock hours of on-site orientation within the 
first six weeks of employment. This orientation shall include 
training in their job-specific duties and responsibilities; a 
review of the child day care licensing law and regulations; a 
review of the individual center's personnel and operational 
policies, purpose, and goals; an explanation of the role of 
state and local government agencies, their effect on the 
center, their availability as a resource, and individual staff 
responsibilities to representatives of State and local 
government agencies; observation of center operations; 
maintaining a safe and healthy environment; and training to 
recognize symptoms of child abuse and neglect. 

(b) The c e nte r di r ecto r child care administrator and any 
staff who have responsibility for plaiming and supervising a 
day child care program, as well as staff who work directly 
with children, shall participate in in-service training activities 
annually, according to the individual's assessed needs. Staff 
may choose one of the following options for meeting the 
in-service requirement: 

(1) Each staff person shall complete in-sc i rice staff 
development training activities which ar e re lat e d to 
child ca re o r to th e p e r son's job r es p onsibiliti e s 
required in G.S. 110-91(11) as specified in the 
following Subparagraphs: 

(A) persons with a four-year degree or higher 
advanced degree in a child care-related field 
of study from a regionally accredited college 
or university shall complete five clock hours 
of training annually; annually. 

(B) persons with a two-year degree in a child 
care-related field of study from a regionally 
accredited college or university, o r pe r sons 
with at — least — ^5 — yea r s — documented. 
p rofessional ex p eri e nc e as a teache r , di r ecto r 
o r car e give r in a licensed o r r egistered child 
ca r e arrangemen t or persons with a North 
Carolina Early Childhood Administrator 
Credential or its equivalent and a cumulativ e 



t o t al of more than 50 hours of a p prov e d 
in-service training shall complete eight clock 
hours of training annually; armually. 

(C) persons with a one-year certificate in a child 
care-related field of study from a regionally 
accredited college or university, or p e r sons 
with — at — tetst — iQ — years — document e d, 
p r ofessional ex p e r ience as a t eache r , di r ector 
o r ca r egiv er in a licensed o r r egiste r ed child 
care arrangement and a cumulative total of 
mo r e than 50 hours of a p proved in-se r vice 
t raining, or persons with a Child 
Develo p ment Associa te North Carolina Early 
Childhood Credential or its equivalent shall 
complete 10 clock hours of training 
annually; annually. 

(D) all other persons shall complete 20 clock 
hours of training ajinually, or annually. 

(2) If the staff p e r son has com p leted six qua r te r hours 

o r 60 clock hou r s of early childhood education or 
child d e velo p m e nt and is e nrolled in an early 
develo p ment — cur r iculum 



childhood — or — child 



pr og r am, com p le t ion of o r enrollmen t in a course 
which is r equi r ed o r a ppr oved fo r completion of 
that cu rr iculum p rogram will fulfill the annual 
in-service requiremen t . 
£21 For staff listed in Parts (b)(1)(A). (B) and (C) of 
this Rule, basic first aid and cardiopulmonary 
resuscitation (CPR) training required in Rule .0705 
of this Section shall not be counted toward meeting 
annual in-service training. 
(3) If a child care administrator or lead teacher is 
currently enrolled in coursework to meet the staff 
qualification requirements in G.S. 110-91(8). the 
coursework may be counted toward meeting the 
annual in-service training requirement. 
(c) For staff working less than 40 hours per week on a 
regular basis and choosing the option for 20 hours of 
in-service training, the training requirement may be prorated 
as follows: 



WORKING HOURS PER WEEK 
0-10 
11-20 
21-30 
31-40 



CLOCK HOURS REQUIRED 
5 
10 
15 

20 



t^ — Clock hou r s of t r aining o r education r ela t ed t o child 
care may be accumula t ed for up t o three years and counted 
toward th e annual in-service t r aining re qui r em e nt. 

Authority G.S. 110-91(11); 143B-168.3. 

.0708 MEETING IN-SERVICE REQUIREMENTS 

Staff may meet the in-service training requirements by 
attending child-care workshops, conferences, seminars, or 
cou r ses courses, provided each training activity satisfies the 
following criteria: 



1112 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



(1) Prior approval from the sec t ion Division is not 
required for training offered by an accredited 
college or university, government agency, or state 
or national professional organization or tt^ its 
recognized affiliates, provided the content complies 
with the pr ovisions of Rul e .0707(b). G.S. 110- 
9ini). 

(2) Prior approval from the section Division is required 
on an annual basis for training provided by 
agencies and organizations which have staff who 
provide, or who arrange for the provision of, 
training for child care operators and staff. To 
obtain such approval, the agency or organization 
shall submit its annual training plan to the section. 
Division. 

(3) Prior approval for each training even t must shall be 
obtained from the s e ction Division by any 
organization, association, or individual not 
included in Paragraphs (1) and (2) of this Rule. 

(4) No more than five clock hours of the 20 clock 
hours of training required annually shall be 
provided on site by center staff. This restriction 
shall not apply if the center staff providing the 
training have been approved according to the 
criteria outlined in either Paragraph (1) or (2) of 
this Rule. 

Authority G.S. 110-91(11); 143B-168.3. 

.0709 DOCUMENTATION OF IN-SERVICE 
TRAINING 

Each center shall have a record of training activities in 
which each staff participates. That record shall include the 
subject matter, topic area in G.S. 1 10-91(11). training 
provider, date provided, hours, and name of staff who 
completed the training. This documentation shall be on file 
and current. 

Authority G.S. 110-91 (9), (11); 143B-168.3. 

.0710 PRESERVICE REQUIREMENTS FOR LEAD 
TEACHERS, TEACHERS AND AIDES 

(a) A lead teacher who has not yet met the staff 
qualifications required in G.S. 1 10-91(8). or a teacher shall 
be at least 18 years of age, lite r at e , have a high school 
diploma or its equivalent, and have at least one of the 
following: 

f¥) A high school or general educa t ion diploma and 

on e of the following: 

tM One year of v er ifiabl e e xperi e nc e wo r king in 

a child day ca r e cente r ; o r 

tB) Twenty additional hou r s of t r aining within 

the first six months of em p loyment ; o r 

(€) Successful completion of the De p artmen t of 

Public — Inst r uction's — Child — Care — Services 
Occu p ational Home Economics P r ogram; or 
t^ A p assing g r ade in at least th e e quival e nt of 



four semest e r hou r s in child dev e lo p m e n t at a 
regionally acc r edited college o r univ er sity; 
or 

(E^ A No r th — Ca r olina — Early — Childhood 

Cr e dential. 

(1) One year of verifiable experience working in a 
child care center or two years of verifiable 
experience as a licensed family child care home 
operator: or 

(2) Successful completion of a two year high school 
Child Care Services Occupational Home Economics 
Program; or 

(3) A passing grade in at least the equivalent of four 
semester hours in child development at a regionally 
accredited college or university: or 

(4) A North Carolina Early Childhood Credential or its 
equivalent: or 

(2) iSJi A Child Development Associate C r ed e ntial. 

Credential or its equivalent: or 
f3) £6i G r aduation — from — a child — care — or — early 
childhood cu rr iculum pr og r am at — a An Early 
Childhood Certificate. Diploma, or A.A.S. degree 
from a regionally accredited community colleg e or 
technical college, college: or 
t4) [21 An undergraduate or graduate degree with at 
least the equivalent of four semester hours in child 
development. 

(5) Five years of ve r ifiable ex p e r ience working in child 

day care. 
(b) An aide is a or person res p onsible to who assists the 
lead teacher or the teacher for assisting with in planning and 
implementing the daily pr og r am program, and shall be at 
least 16 years old and literate. 

Authority G.S. 110-91(8); 143B-168.3. 

.0711 PRESERVICE REQUIREMENTS FOR OTHER 
STAFF 

(a) Any person whose job responsibility includes driving a 
vehicle to transport child r en shall : children, including any 
substitute driver, shall meet the requirements in Rule .1003 
of this Subchapter. 



of age; o r a duly licensed 



t+1 Be at least 18 yea r s 

school bus d r iv er : and 
(3^ Have no conviction of D r iving While Im p ai r ed 

(DWl) o r othe r im p ai r ed d r iving offense within th e 

last thr ee y e ars; and 



wi 



t3^ Hav e a valid d r iv er 's license of the ty p e r cqui r 

und e r North Carolina Moto r V e hicle Law fo r the 
vehicle being d r iv e n o r com p arable license f r om the 
state in which the d r ive r r esides. 

(b) Non-caregiving staff or any person providing support 
to the operation of the program shall be at least 16 years of 
age; and meet the requirements of the local health department 
for food handlers, if applicable, when duties are related to 
food preparation or food service. 

(c) Any t e ach er substitut e shall be at l e ast 18 years old and 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1113 



PROPOSED RULES 



liie r a t e. Any substi t u t e d r ivci shall comply with the 

requi r em e nts of Pai ' agraph (d) of this Rule. 

Authorirx G.S. 110-91(8): 143B-168.3. 

.0712 STAFF/CHILD RATIOS FOR CENTERS WITH A LICENSED CAPACITY OF LESS THAN 30 CHILDREN 

(a) The staff/ child ratios and group sizes for a small day child care center not located in a residence with a licensed capacity 
of less than 30 children are as follows: 

Age of Children No. Children 
to 12 Months 5 

12 to 24 Months 6 

2 to 3 Years 10 

3 to 5 Years 15 
5 Years and Older 25 





Maximum 




No. Staff 


Group Size 


No. Staff 




10 


2 




12 


2 




20 


2 




25 


2 




25 


1 



tfcr> £1} When only one caregiver is required to meet the staff/child ratio, and children under two years of age are in care, 
that person shall not concurrently perform food preparation or other duties which are not direct child care 
responsibilities. 
frt ill When only one caregiver is required to meet the staff/child ratio, the operator shall select one of the following 
options for emergency relief: 
t+^ (A} The center shall post the name, address, and telephone number of an adult who has agreed in writing to be 

available to provide emergency relief and who can respond within a reasonable period of time; or 
t^ iB] There shall be a second adult on the premises who is available to provide emergency relief. 
(b) The staff/child ratios for a center located in a residence with a licensed capacity of six to 12 children when any preschool 
aged child is enrolled, or with a licensed capacity of six to 15 children when only school-aged children are enrolled are as 
follows: 

Additional number of 
Age of Children No. Children No. Staff school-aged children allowed 

to 12 Months 5 1 3 

12 to 24 Months 6 1 2 

2 to 13 Years IQ 1 Q 

3 to 13 Years il 1 Q 
All school-aged 15 1 Q 

Authonn G.S. 110-91(7): 143B-168.3. 

.0713 STAFF/CHILD RATIOS FOR CENTERS WITH A LICENSED CAPACITY OF 30 OR MORE CHILDREN 

(a) The staff/child ratios and group sizes for single-age groups of children in medium and large day care centers with a 
licensed capacity of 30 or more children shall be as follows: 

Age of Children 
to 12 Months 
12 to 24 Months 

2 to 3 Years 

3 to 4 Years 

4 to 5 years 

5 Years and Older 

(b) In any multi-age group situation, the staff/child ratio children under one year of age when a physician certifies that 
for the youngest child in the group shall be maintained for the the developmental age of the child makes this placement 
entire group. appropriate. 

(c) Children younger than two years old may be cared for (e) When determined to be developmentally appropriate by 
in groups with older children at the beginning and end of the the operator and parent, a child age two or older may be 
operating day provided the staff/child ratio for the youngest placed one age level above his or her chronological age 
child in the group is maintained. without affecting the staff/child ratio for that group. This 

(di A child two years of age and older may be placed with provision shall be limited to one child per group. 



1114 NORTH CAROLINA REGISTER January 2, 1998 12:13 









Maximum 




No. Children 


No. 


Staff 


Group Size 


No. Staff 


5 






10 


2 


6 






12 


2 


10 






20 


2 


15 






25 


2 


20 






25 


2 


25 






25 


1 



PROPOSED RULES 



(f) Except as provided in Paragraphs (c) and (d), children 
under one year of age shall be kept separate from children 
two years of age and over. 

(g) Children between the ages of 12 months and 24 months 
shall not be routinely grouped with older children unless all 
children in the group are less than three years old. 

(h) When only one caregiver is required to meet the 
staff/child ratio, and children under two years of age are in 
care, that person may concurrently perform food preparation 
or other duties which are not direct child care responsibilities 
as long as supervision of the children as specified in Rule 
.0714(e) (fl of this Section is maintained. 

(i) When only one caregiver is required to meet the 
staff/child ratio, the operator shall select one of the following 
options for emergency relief: 

(1) The center shall post the name, address, and 
telephone number of an adult who has agreed in 
writing to be available to provide emergency relief 
and who can respond within a reasonable period of 
time; or 

(2) There shall be a second adult on the premises who 
is available to provide emergency relief. 

(j) Except as provided in Paragraph (h) of this Rule, staff 
members and administrators who are counted in meeting the 
staff/child ratios as stated in this Rule shall not concurrently 
perform food preparation or other duties which are not direct 
child care responsibilities. 

Authority G.S. 110-91(7): 143B-168.3. 

.0714 OTHER STAFFING REQUIREMENTS 

(a) Each day child care center shall have an administrator 
on site on a regular basis. This requirement may be met by 
having one or more persons on site who meet the 
requirements for an administrator for the sire licensed 
capacity of a center being ope r ated according to the following 
schedule: 

( 1 ) Each small center with a licensed capacity of less 
than 30 children shall have an administrator on site 
for at least 29 50% of the center's total operating 
hours per week. 

(2) Each medium center with a licensed capacity of 30 
to 79 children shall have an administrator on site 
for at least 25 60% of the center's total operating 
hours per week. 

(3) Each la r ge center with a licensed capacitv of 80 to 
199 children shall have an administrator on site for 
at least 36 75% of the center's total operating hours 
per week. 

(4) Each center with a licensed capacity of 200 or more 
children shall have an administrator on site for at 
least 85% of the center's total operating hours per 
week. 

(b) At least one person who meets the requirements for an 
adminisiratoi administrator, lead teacher, or teacher as set 
forth in this Section shall be on site during the center's 
operating hours except that a person who is at least 18 years 



old and lite r ate with at least a high school diploma or its 
equivalent and who has a minimum of one year's experience 
working with children in a day child care center may be on 
duty at the begirming or end of the operating day provided 
that: 

(1) No more than 10 children are present. 

(2) The staff person has worked in that center for at 
least three months. 

(3) The staff person is thoroughly familiar with the 
center's operating policies and emergency 
procedures. 

(c) At least one person who meets the requirements for a 
lead teacher set fo r th in Rule .0710 of this S e ction shall be 
responsible for each group of children as defined in Rule 
.0102 of this Subchapter except as provided in Paragraph (b) 
of this Rule. Each lead teacher shall be responsible for only 
one group of children at a time. Each group of children shall 
have a lead teacher in attendance for at least two-thirds of the 
total daily hours of operation. 

(d) A teacher aide is a person who is responsible to the 
lead teacher and assists with planning and implementing the 
daily program. An aide shall not have full res p onsibility fo r 
a g r ou p of child r en exce pt as pr ovided in Parag r a p h (b) of 
this Rule. 

(e) An aide shall not have full responsibility for a group of 
children except as provided in Paragraph (b) of this Rule. 

te) £f} Children shall be adequately supervised at all 
times. Adequate Su p e r vision supervision shall mean visual 
su per vision and int er action that staff interact with the children 
while moving about the indoor or outdoor area, with the 
exce p tion of brief p e r iods n e cessitated by em er gencies, and 
are able to hear and see the children at all times, except: 

(1) when children are ages five and older and are 
developmentally able to use the restroom 
independently, provided that individuals who are 
not staff members do not enter the restroom area 
while in use by the children, and that staff check on 
a child who has not returned from the restroom 
after a brief period of time. 

(A) Children ages five to nine using the restroom 
may be supervised by staff who are only able 
to hear the child. 

(B) Children ages nine and older using the 
restroom are not required to be directly 
supervised. 

(2) when emergencies necessitate that direct 
supervision is impossible for brief periods of time. 

tft Igi For groups of children aged two years or older, the 
staff/child ratio during nap time is considered in compliance 
if at least one person is either in each room or is visually 
supervising all the children and if the total number of 
required staff are on the premises and within calling distance 
of the rooms occupied by children. 

(g) A rr angements shall be made fo r qualified substitutes o r 
t e m p o r ary rep lac e ments wh e n r e gular staff ar e abs e nt. Wh e n 
r e gular staff fail to rep o r t to wo r k o r leav e work for a reason 
which cannot b e sch e dul e d o r p lann e d, such as p e r sonal 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1115 



PROPOSED RULES 



emergencies or illness, the person in charge of the cente r shall 
re p lace the absent staff with a substitute within two hou r s of 



thc- 



jla r staff was scheduled to begm wo r k o r l e ft 



tune tnc regula r 
work. — Supci - vision of all child r en as s p ecitlcd in Paragraph 
(c) of this Rule shall be maintained, even if staff/child r atio 
and s p ace occupaticy requiremen t s must be violated until the 
substitute arrives. This allowatice docs not apply to failu r e to 
r e turn — on — time — from — regula r — kmdi — or — break — times. 
Notwithstajiding th e inability — to p lan or antici p ate this 
situation, centers in which this allowance is us e d more than 
three times within a month will lose for th r ee months the 
rrg+rt — to — violate — staff/child — ratio — or — s p ace — occu p ancy 
requi r ements in such ci r cumstances without p enalty. — When 
this p r ovision is used, the ci r cumstanc e s that r equi r ed its use 
shall be documented by the pe rson in cha r ge. 

Authority G.S. 1 10-85(1). (2); 110-91 (7). (8); 143B-168.3. 

SECTION .0800 - HEALTH STANDARDS FOR 
CHILDREN IN CENTERS 

.0802 EMERGENCY MEDICAL CARE 

(a) Each day child care center shall have a written plan 
which assures that emergency medical care is available or can 
be obtained for staff and children. The plan shall be 
reviewed during staff orientation with new staff and with all 
staff at least twice each year. This plan shall give the 
procedures to be followed to assure that any child o r staff 
p e r son who becomes ill or is injured and requires medical 
atteniion while at the center, or while participating in any 
activity provided or sponsored by the center, receives 
appropriate medical attention. The following information 
shall be included in the center's emergency medical care plan: 

(1) The name, address, and telephone number of a 
physician, nurse, physician's assistant, nurse 
practitioner, community clinic, or local health 
department that is available to provide medical 
consultation; 

(2) The name, address, and telephone number of the 
emergency room to be used when the parents or 
family physician cannot be reached or when 
transporting the ill or injured p e r son child to the 
person's preferred hospital could result in serious 
delay in obtaining medical attention; 

(3) Designation of a means of transportation always 
available for use in the event of a medical 
emergency; 

(4) The name of the person, and his or her alternate, at 
the center, responsible for determining which of the 
following is needed, carrying out that plan of 
action, and assuring that appropriate medical care is 
given: 

(A) Simple first aid given at the center for an 
injury or illness needing only minimal 
attention; 

(B) Advice from previously identified medical 
consultant in order to decide if care is to be 



given at the center or if the ill or injured 
p erson child is to be transported to a 
designated medical resource; or 
(C) Immediate transportation of the p e r son child 
to a designated medical resource for 
appropriate treatment; 

(5) The person person(s) at the center who — ts 
responsible for: 

(A) Assuring that the signed authorization 
described in (c) of this Rule is taken with the 
ill or injured p erson child to the medical 
facility; 

(B) Accompanying the ill or injured p e r son child 
to the medical facility; 

(C) Notifying a child's parents or emergency 
contact person about the illness or injury and 
where the child has been taken for treatment; 

t&) Notifying — the — emergency — contact — person 

wh e n a staff p e r son becom e s ill o r is injured 
to an extent r equiring t r ans p o r tation to a 
medical facility; 

(E) {DX Notifying the medical facility about the 
ill or injured pe rson child being transported 
for treatment; and 

(F) lEi Obtaining substitute staff, if needed, to 
maintain required staff/child ratio and 
adequate supervision of children who remain 
in the center; 

(6) A statement giving the location of the telephone 
located on the premises which is in good working 
condition and is always available for use in case of 
emergency. Telephone numbers for the fire 
department, law enforcement office, emergency 
medical service, and poison control center shall be 
posted near the telephone. A telephone located in 
an office in the center that is sometimes locked 
during the time the children are present cannot be 
designated for use in an emergency. 

(b) Emergency medical care information shall be on file 
for each individual child, child and staff pe r son. That 
information shall include the name, address, and telephone 
number of the parent or other person to be contacted in case 
of an emergency, the responsible party's choice of health care 
provider, and preferred hospital; any chronic illness the 
individual has and any medication taken for that illness; and 
any other information that has a direct bearing on assuring 
safe medical treatment for the individual, child. This 
emergency medical care information shall be on file in the 
center on the child's first day of attendance, attendance o r the 
staff pe r son's fi r st day of em p loyment. 

(c) Each child's parent, legal guardian, or full-time 
custodian shall sign a statement authorizing the center to 
obtain medical attention for the child in an emergency. That 
statement shall be on file on the first day the child attends the 
center. It shall be easily accessible to staff so that it can be 
taken with the child whenever emergency medical treatment is 
necessary. 



1116 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



(d) An incident report shall be completed each time a child 
receives medical treatment by a physician, nurse, physician's 
assistant, nurse practitioner, community clinic, or local health 
department, as a result of an incident occurring while the 
child is at the day child care center. This incident report shall 
include, at a minimum: child's name, date and time of 
incident, part of body injured, type of injury, names of adult 
witnesses to incident, description of how and where incident 
occurred, piece of equipment involved (if any), treatment 
received and steps taken to prevent reoccurrence. This report 
shall be signed by the person completing it and by the parent, 
and maintained in the child's file. A copy of the incident 
report shall be mailed to a representative of the Division 
within seven calendar days after treatment. 

(e) An incident log shall be completed any time an incident 
report is completed. This log shall be cumulative and 
maintained in a separate file and shall be available for review 
by a representative of the Division. This log shall be 
completed on a form provided by the Division. 

Authority G.S. 110-91(1), (9); 143B-168.3. 

.0803 ADMEVISTERING MEDICATION 

(a) No drug or medication shall be administered to any 
child without specific instructions from the child's parent, a 
physician, or other authorized health professional. No drug 
or medication shall be administered after its expiration date. 

(1) Prescribed medicine shall be in its original 
container bearing the pharmacist's label which lists 
the child's name, date the prescription was filled, 
the physician's name, the name of the medicine or 
the prescription number, and directions for dosage, 
or be accompanied by written instructions for 
dosage, bearing the child's name, which are dated 
and signed by the prescribing physician or other 
health professional. Prescribed medicine shall be 
administered only to the person for whom it is 
prescribed. 

(2) Patent Over-the-counter medicines, such as cough 
syrup, decongestant, as p i r in, acetaminophen, 
ibuprofen. topical teething medication, topical 
antibiotic cream for abrasions, or medication for 
intestinal disorders shall be in its original container 
and shall be administered as authorized in writing 
by the child's parent, not to exceed amounts and 
frequency of dosage specified in the printed 
instructions accompanying the medicine. The 
parent's authorization shall give the child's name, 
the specific name of the over-the counter medicine, 
dosage instructions, the parent's signature, and the 
date signed. Paten t Over-the counter medicine may 
also be administered in accordance with written 
instructions from a physician or other authorized 
health professional. 

(3) When any questions arise concerning whether 
medication provided by the parent should be 
administered, that medication shall not be 



administered without signed, written dosage 
instructions from a licensed physician or authorized 
health professional. 

(4) A written statement from a parent may give blanket 
permission for up to six months to authorize 
administration of medication for asthma and 
allergic reactions. A written statement from a 
parent may give blanket permission for up to one 
year to authorize administration of sunscreen and 
over-the counter diapering creams. The written 
statement shall describe the specific conditions 
under which these medications and creams are to be 
administered and detailed instructions on how they 
are to be administered. 

(5) A written statement from a parent may give blanket 
permission to administer a one-time, weight 
appropriate dose of acetaminophen in cases where 
the child has a fever and tlie parent cannot be 
reached. 

(b) Any medication remaining after the course of treatment 
is completed shall be returned to the child's parents. 

(c) Any time medication other than sunscreen or diapering 
creams is are administered by facili t y center personnel to 
children receiving care, the child's name, the date, time, 
amount and type of medication given, and the name and 
signature of the person administering the medication shall be 
recorded. This information shall be noted on a medication 
permission slip, or on a separate form developed by the 
provider which includes the required information. This 
information shall be available for review by a representative 
of the Division. Division during the time period the 
medication is being administered and for at least six months 
after the medication is administered. 

Authority G.S. 110-91(1). (9); 143B-168.3. 

.0804 INFECTIOUS AND CONTAGIOUS DISEASES 

(a) racilitics Centers may provide care for a mildly ill 
child who has a temperature of less than 102 degrees 
Fahrenheit and who remains capable of participating in 
routine group activities; provided the child does not: 

(1) have the sudden onset of diarrhea characterized by 
an increased number of bowel movements 
compared to the child's normal pattern and with 
increased stool water; or 

(2) have two or more episodes of vomiting within a 12 
hour period; or 

(3) have a red eye or eyes accompanied by a discharge 
that is not clear in color; or 

(4) have scabies or lice; or 

(5) have known chicken pox or a rash suggestive of 
chicken pox; or 

(5-) (6] have a physician's diagnosis or other health 
professional's written order re qui r ing that the child 
be separated from other children. 

(b) Faciliti e s Centers which choose to provide care for 
mildly ill children shall: 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1117 



PROPOSED RULES 



(1) follow all procedures to prevent the spread of 
communicable diseases described in 15A NCAC 
18A .2800. "Sanitation of Child Day Care 
Facilities", as adopted by the Health Services 
Commission: 

(2) separate from the other children any child who 
becomes ill while in care or who is suspected of 
having a communicable disease or condition other 
than as described in Paragraph (a) of this Rule until 
the child leaves the facility: center: 

(3) notify all parents at enrollment that the facility 
center will be pro\iding care caring for mildly ill 
children: 

(4) immediately notify the parent of any child who 
becomes ill while in care or who is suspected of 
being ill with a communicable condition other than 
as described in Paragraph (a) of this Rule that the 
child is ill and may not remain in care: 

(5) immediately notify the parent of an\' sick child in 
care if the child's condition im pr oves o r worsens 
while the child is in care. 

Aiuhorm G.S. 110-91(1). (2): 143B-168.3. 

.0806 CLOTHING 

(a) Diapers will be changed whenever they become soiled 
or wet and not on a shift basis. 

(b) There must be clean clothes available so that when the 
clothes worn by a child becomes wet or soiled the child has 
clean clothes to put on. The change of clothing may be 
provided by the center or by the child's parents. 

(c) A supply of clean linen must be on hand so that linens 
can be changed whenever they become soiled or wet. 

(d) Children shall be toilet trained according to individual 
readiness. 

Authorises. 110-91(1): 143B-168.3. 

SECTION .0900 - NUTRITION REQUIREMENTS FOR 
CENTERS 

.0901 GENERAL NUTRITION REQLTREMENTS 

(a) Meals and snacks served shall contain the food groups 
outlined in the Basic Four Food Guide which is based on the 
recommended nutrient intake judged by the National Research 
Council to be adequate for maintaining good nutrition. The 
number and size of servings shall be appropriate for the ages 
and developmental levels of the children in care, as s p ecified 
in the A pp endices to the Licensing Manual, care as approved 
by the Commission. The National Research Council nutrition 
standards for children are incorporated bv reference and 
include subsequent amendments. A cop\- of these standards is 
available free of charge from the Di\ision at the address in 
Rule .0102( 1) of this Subchapter. 

(b) Menus for nutritious meals and snacks shall be planned 
at least one week in advance. At least one dated copy of the 
current week's menu shall be posted where it can be seen 



easily by parents and food preparation staff when food is 
prepared or provided by the cente r , center, except in centers 
with a licensed capacity of six to 12 children located in a 
residence. A variety of food shall be included in meals and 
snacks. Any substitution will be of comparable food value 
and will be recorded on the menu. 

(c) When children bring their own food for meals or 
snacks to the center, if the food does not meet the nutritional 
requirements specified in (a) of this Rule, the center must 
provide additional food necessary to meet those requirements. 

(d) Drinking water must be freely available to children of 
all ages and offered at frequent intervals. Approved drinking 
fountains or individual drinking utensils shall be provided. 
When a private water supply is used, it must be tested by and 
meet the requirements of the Division of Health Se r vic e s, 
Department of Human Resou r ces. Environment and Natural 
Resources. 

(e) Children's special diets or food allergies shall be 
posted in the food preparation area and in the child's eating 
area. 

(f) The food required by special diets may be provided by 
the center or may be brought to the center by the parents. If 
the diet is prescribed by a physician, written instructions will 
be provided by the child's parent, physician, or a registered 
dietitian. 

(g) Food and beverages with little or no nutritional value, 
such as sweets, fruit drinks, soft drinks, etc., will be 
available onl\- for special occasions, occasions and only in 
addition to nutritious meals and snacks. 

Aiahorin G.S. 110-91(2): 143B-168.3. 

.0902 GENERAL NUTRITION REQUIREMENTS 
FOR EVE ANTS 

(a) The parent or physician of each child under 15 months 
of age shall provide the center an individual written feeding 
schedule for the child. This schedule must be followed at the 
center. This schedule must include the child's name name, be 
signed by the parent or phvsician. and be dated when received 
by the center. Each infant's schedule shall be modified to 
reflect changes in the child's needs as he develops. The 
feeding instructions for each infant shall be posted for quick 
reference by the ca r egive r s, caregivers, except in centers 
licensed for six to 12 children located in a residence. 

(b) Each infant will be held for bottle feeding until able to 
hold his or her own bottle. Bottles will not be propped. 
Old e r infants u p to 24 months of ag e Each child will be held 
or placed in feeding chairs or other age-appropriate seating 
apparatus to be fed. 

Auihorm- G.S. 110-91(2): 143B-168.3. 

SECTION .1000 - TRANSPORTATION STANDARDS 
FOR CENTERS 

.1001 SEAT RESTRAINTS 

(a) Children under one year of age shall never be 



1118 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



transported outside an appropriate infant restraint device in 
any vehicle owned or operated under the auspices of the day 
child care center. 

(b) Each adult and child shall be restrained with an 
individual seat belt or appropriate child restraint device when 
the vehicle is in motion. 

(c) Onlv one person shall occupy each seat belt or child 
restraint device. 

(d) Children shall not occupy the front seat if the vehicle is 
equipped with an operational passenger side airbag. 

Authority G.S. 110-91: 110-91(13); 143B-168.3. 

.1002 SAFE VEHICLES 

(a) All vehicles used to transport children shall meet and 
inaimain the safety inspection standa r ds of the Division of 
Moto r Vehicles of t he De p artment of Transpo r tation, be in 
good repair, safe, and free of hazards such as torn upholstery, 
broken windows, and holes in the floor or roof. 

(b) Vehicles shall be insured for liability as required by 
State laws governing transportation of passengers. 

(c) Vehicles used to transport children in snowy, icy, and 
other hazardous weather conditions must be equipped with 
snow tires, chains, or other safety equipment as appropriate. 

Authority G.S. 110-91; 110-91(13); 143B-168.3. 

.1003 SAFE PROCEDURES 

ftr) — The center o r othe r t r ans p ortation pr ovid er shall 
comply — with all — applicable — state — and — federal — hrws — and 
regula t ions conce r ning the safe tr ans p o rt a t ion of passengers. 

(tr) (a) The driver or other adult in the vehicle shall assure 
that all children are received by a responsible person. 

(ct {b} Each center shall establish safe procedures for 
pick-up and delivery of children. These procedures shall be 
communicated to parents, and a copy shall be posted in the 
center where they can easily be seen. Centers licensed for six 
to twelve children located in a residence are not required to 
post these procedures. 

(d) £c} A first-aid kit shall be located in each vehicle used 
on a regular basis to transport children. The first-aid kit shall 
be firmly mounted or otherwise secured if kept in the 
passenger compartment. 

(et £dj Emergency and identification information about 
each child must be in the vehicle whenever children are being 
transported. 

(f) t£l The driver shall be 18 years old or a duly licensed 
school bus driver and have a valid driver's license of the type 
required under North Carolina Motor Vehicle Law for the 
vehicle being driven or comparable license from the state in 
which the driver resides and no convictions of Driving While 
Impaired (DWI) or any other impaired driving offense within 
the last three years. 

(^ m Each person in the vehicle must be seated in the 
manufacturer's designated areas. No child shall ride in the 
load carrying area or floor of a vehicle. 

t+r) igx Children shall never be left in a vehicle unattended 



by an adult. 

tt) £hi Children shall be loaded and unloaded from 
curbside, or in a safe, off-street area, out of the flow of 
traffic, so that they are protected from all traffic hazards. 

Authority G.S. 110-91; 110-91(13); 143B-168.3. 

.1004 STAFF/CfflLD RATIOS 

(a) When children aged two years and older are being 
transported, the staff/child ratios required for compliance 
with day child care center regulations as set forth in Section 
.0700 of this Subchapter shall apply. 

(b) When three or more children under the age of two 
years are being transported, the staff/child ratio requirements 
for day child care centers set forth in Section .0700 of this 
Subchapter for children under age two shall be maintained. 
The driver shall not be counted in the staff/child ratio. 

Authority G.S. 110-91(13); 1438-168. 3. 

SECTION .1300 - BUILDING CODE REQUIREMENTS 
FOR CfflLD CARE CENTERS 

.1301 BUILDING CODE REQUIREMENTS IN 
OPERATION PRIOR TO 4/1/72 

For the purpose of carrying out the provisions of G.S. 
110-91(4), the North Carolina Building Code standards for 
day child care centers in operation prior to April 1, 1972 
developed by the Building Code Council are hereby adopted 
by reference by the Child ©ay Care Commission. A copy of 
the North Carolina Building Code standards is on file at the 
Child Day Ca r e Section, Division of Facility SeiTices. 701 
Ba r bou r D r iv e . Raleigh, Nor t h Carolina, Child Development 
located at the address given in Rule .0102 of this Subchapter 
and will be available for public inspection during regular 
business hours. 

Authority G.S. 110-91(4); 143B-168.3. 

.1302 BUILDING CODE REQUIREMENTS FOR 
CHILD CARE CENTERS 

For the purpose of carrying out the provision of G.S. 
110-91(4), the North Carolina Building Code standards for 
day child care centers (mo r e than 15 child r en) developed by 
the Building Code Council are hereby adopted by reference 
by the Child ©ay Care Commission. Commission and include 
subsequent amendments. A copy of the North Carolina 
Building Code standards is on file at the Child Day Ca r e 
Section, Division of Facility Se r vices 701 Ba r bou r D r ive. 
Ral e igh, No r th Carolina. 27003, Child Development located 
at tlie address given in Rule .0102 of this Subchapter and will 
be available for public inspection during regular business 
hours. 

Authority G.S. 110-91(4); 143B-168.3. 

.1303 BUILDING CODE REQUIREMENTS FOR 



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NORTH CAROLINA REGISTER 



January 2, 1998 



1119 



PROPOSED RULES 



SMALL GROUP FACILITIES LICENSED 
PRIOR TO 7/1/88 

For the purpose of carr>'ing out the provisions of G.S. 
110-91(4), the Nonh Carolina Building Code standards for 
small group day care facilities (6-15 children) developed by 
the Building Code Council are hereby adopted by reference 
by the Child &ay Care Commission. A copy of the North 
Carolina Building Code standards is on file at the Child Day 
Cai ' c Section, Division of racility Sc i tIccs 701 Barbou r 
Drive Raleigh, North Carolina, Child Development located at 
the address given in Rule .0102 of Ms Subchapter and will 
be available for public inspection during regular business 
hours. 

Authority G.S. 110-91(4): 143B-168.3. 

.1304 REQUIREMENTS FOR CHILD CARE 

CENTERS LICENSED IN A RESIDENCE 

For the purpose of carrying out the provisions of G.S. 110- 
91(4). the Nonh Carolina Building Code standards for Large 
Day Care Homes developed by the Building Code Council are 
hereby adopted by reference by the Child Care Commission 
and include subsequent amendments for child care centers 
licensed m a residence for six to 12 children when any 
preschool-aged children are in care, or for six to 15 children 
when only school-aged children are in care. A copy of the 
North Carolina Building Code standards is on file at the 
Division of Child Development located at the address given 
in Rule .0102 of this Subchapter and will be available for 
public inspection during regular business hours. 



floor space provides 200 cubic feet of air space per 
child for the maximum number of children who 
will sleep in that room at any time. 

(2) All measurements will be rounded off to the nearest 
inch. 

(3) Total space on which the licensed capacity is based 
will be the sum of the measurements of all primary 
space to be used by the children. However, no 
room will routinely be occupied by more children 
than the primary space in that room will 
accommodate at 25 square feet of space per child. 
This is not meant to preclude grouping children 
together periodically for special activities, such as 
to view films or slides; for special presentations, 
such as puppet or magic shows, a special story 
teller, a discussion of safety practices by a fireman 
or nurse, etc. However, care must be taken to 
assure that during such special activities, the room 
used is not so overcrowded that the children and 
staff would be endangered in case of a fire or other 
emergency necessitating evacuation of the center. 

(b) For centers with a licensed capacity of six to 12 
children located in a residence, the dining area of a kitchen 
may be counted if it is routinely used for children's activities 
in addition to eating. 

(c) Paragraph (b) lal of this Rule shall apply only to child 
day care centers initially licensed on or after February 1, 
1985. 

Authority G.S. 110-91(6); 143B-168.3. 



Authority' G.S. 110-91(4); 143B-168.3. 



SECTION .1400 



SPACE REQUIREMENTS FOR 
CENTERS 



.1401 INDOOR SPACE 

(crt — The r e shall be at l e ast 25 square feci of indoo r s p ace 
for e ach child for which a day care cent er is licensed, 
exclusive of closets, p assag e ways, kitch e ns and bath r ooms. 

tbt laj Indoor space on which licensed capacity is based 
will be referred to as "primary space". The licensing 
consultant will measure all primary space that will routinely 
be used by children who attend the center, except that the 
following will not be included: closets, hallways, storage 
areas, kitchens, bathrooms, utility areas: thresholds, foyers, 
space or rooms used for administrative activities or space 
occupied by adult-sized desks, cabinets, file cabinets, etc.; 
single-use rooms, including music rooms, isolation/sick 
rooms, gymnasiums, dining rooms, sleep rooms; any floor 
space occupied by or located under equipment, furniture, or 
materials not used by children; and any floor space occupied 
by or located under built-in equipment or furniture. 

(1) Any single-use room used by the children for 
sleeping only, either during nap time or any other 
time, will also be measured by the section's 
Division's representative to assure that the available 



SECTION .1700 - FA^ULY CfflLD CARE HOME 
STANDARDS 

.1701 CENTRAL PROVISIONS RELATED TO 
LICENSURE OF HOMES 

(a) All famih- child day care homes as d e fin e d by Rule 
.0102(8) of this Subcha p t er shall r egister and comply with the 
standards for regist r ation licensure set forth in this Section. 

(b) At the beginning of each fiscal year, the Section 
Division shall prepare a written plan explaining the guidelines 
for making randomly-selected armounced and unannounced 
compliance visits to re gist e r e d day family child care homes. 
The plan shall be dated and signed by the Section Chief 
Division director and shall be kept in a confidential file, by 
the Section Chief. 

(c) When a day care home exists, all p r eschool -ag e d 
child r en shall be counted in the re giste r ed ca p acity. — This 
includ e s th e car e giv er 's own pre school-ag e d children. The 
pr e school-ag e d child children of an emergency caregiver need 
shall not be counted in the r egiste r ed licensed capacity for the 
first day of the emergency caregiver's service. 

(d) The caregiver's own school-aged child r en shall include 
school-aged children who r eside at the location of the day 
ca r e home, and they shall not b e count e d to determin e if a 
day ca r e home exists, no r shall they be counted in the 
r egiste r ed ca p acity. 



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12:13 



PROPOSED RULES 



fe) tdl The provisions of G.S. 110- 9 0.1 G.S. 110-9U8) 
which exclude persons with certain criminal records or 
personal habits or behavior which may be harmful to children 
from operating or being employed in a family child day care 
home are hereby incorporated by reference in acco r dance with 
G.S. 150D-14(c) and shall also apply to any person on the 
premises with the operator's permission when the children are 
present. This exclusion shall not apply to parents or other 
persons who enter the home only for the purpose of 
performing parental responsibilities; nor does it include 
persons who enter the facili t y home for brief periods for the 
purpose of conducting business with the operator and who are 
not left alone with the children. 

(e) The parent, guardian, or full-time custodian of a child 
enrolled in any family child care home subject to regulation 
under G.S. 110. Article 7 or these Rules shall be allowed 
unlimited access to the home during its operating hours for 
the purposes of contacting the child or evaluating the home 
and the care provided by the operator. The parent, guardian 
or custodian shall notify the operator of his or her presence 
immediately upon entering the premises. 

£f) An operator licensed to care for children overnight may 
sleep during the nighttime hours when all the children are 
asleep provided: 

(\) the operator and the children in care, excluding the 

operator's own children, are on ground level: and 
£2} the operator can hear and respond quickly to the 

children if needed: and 
(3) a battery operated smoke detector or an electricallv 
operated (with a battery backup) smoke detector is 
located in each room where children are sleeping. 

Authority G.S. 110-85; 110-86(3); 110-88(1); 110-91; 
110-99; 110-105; 143B-168.3. 

.1702 APPLICATION FOR A LICENSE FOR A 
FAMILY CfflLD CARE HOME 

(a) Any person who plans to operate a day family child 
care home shall comple t e a Day Car e Hom e Ap p lica t ion for 
Regis tr ation as d e sc r ibed in Rule .2313. apply for a license 
using a form provided by the Division. The applicant shall 
submit the completed application, which complies with the 
following, to the sec t ion : Division: 

(1) Only one r egiste r ed day licensed family child care 
home shall be o p e r ated operate at the location 
address of that any r egiste r ed day care home. 

(2) The applicant shall list each location address where 
the day a licensed family child care home will 
operate. 

(b) When a r egist r ant operates a day family child care 
home will operate at more than one location address by 
cooperative arrangement among two or more families, the 
following procedures shall apply: 

(1) One parent whose home is used as a location 
address shall be designated the coordinating parent 
and shall co-sign the application with the r egist r ant. 
applicant. 



(2) The coordinating parent is responsible for knowing 

the current location address at all times and shall 

provide the information to the section Division 

upon request. 

fe^ — U p on r ecei p t of an acce p table a pp lication the Section 

may issue w r itten permission to ope r ate on a temporaiy basis. 



A p e r son is not able to o pe rat e l e gally until he o r she has 
re c e iv e d — eithe r 



o pe r 
tem p orai7 — p ermission 



-to — o p e r ate — or — a 



r egist r ation ce r tificate. 

(c) The operator shall assure that the structure in which the 
family child care home is located complies with the following 
requirements: 

(1) Comply with the North Carolina Building Code for 
family child care homes or have written approval 
for use as a family child care home by the local 
building inspector as follows: 

(A) Meet Volume I-B Uniform Residential 
Building Code or be a manufactured home 
bearing a third party inspection label 
certifying compliance with the Federal 
Manufactured Home Construction and Safety 
Standards or certifying compliance with 
construction standards adopted and enforced 
by the State of North Carolina. Homes shall 
be installed in accordance with North 
Carolina Manufactured/Mobile Home 
Regulations published by the NC Department 
of Insurance. 

Exception: Single wide manufactured homes 
will be limited to a maximum of three 
preschool -aged children (not more than two 
may be two years of a^ or less) and two 
school-aged children. 

(B) All children shall be kept on the ground level 
with an exit at grade. 

(C) All homes shall be equipped with an 
electrically operated (with a battery backup) 
smoke detector, or one electrically operated 
and one battery operated smoke detector 
located next to each other. 

(D) All homes shall be provided with at least one 
five lb. 2-A:lQ-B:C type extinguisher readily 
accessible for every 2.500 square feet of 
floor area. 

(E) Fuel burning space heaters, fireplaces and 
floor furnaces which are listed and approved 
for that installation and are provided with a 
protective screen attached securely to 
substantial supports will be allowed. 
However, unvented fuel burning heaters and 
portable electric space heaters of all types are 
prohibited. 

(2) Assure that all indoor areas used by children are 
adequately heated in cool weather and ventilated in 
warm weather. 

(3) Cover or insulate hot pipes or radiators which are 
accessible to the children. 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1121 



PROPOSED RULES 



(d) The applicant shall also submit supporting 
documentation with the application for a license to the 
Division. The supponing documentation shall include a copy 
of the applicant's certified criminal history check from the 
Clerk of Superior Court's office in the county or counties 
where the individual has resided during the previous \2 
months; a copy of documentation of completion of a first aid 
and cardiopulmonan,- resuscitation (CPR) course: proof of 
negative results of the applicant's tuberculosis lest completed 
within the past six months: a completed health questionnaire: 
a copy of current pet vaccinations for any ^et in the home: a 
negative well water bacteriological analysis if tlie home has a 
private 'A'ell: copies of any inspections required by local 
ordinances: and any other documentation required to support 
the issuance of a license required by the Division. 

(ri^ le] Upon receipt of an acceptable application and 
supporting documentation ^ required by the Division, a 
Division A representative of the section shall make an 
announced visit to each home unless the applicant meets the 
criteria in Paragraph (g) of ttiis Rule op e rating on a 

: i f this visit shall be to 



icm p o r arv ' b asis. 1 he purpose 

determine compliance with the standards, to offer technical 
assistance when needed, and to provide information about 
local resources. 

(1) If the home is found to be in compliance with the 
applicable requirements of G.S. 110 and this 
Section, a Ce r tificat e of Regist r ation license shall 
be issued. 

(2) If the home is not in compliance but has the 
potential to comply, the section Division 
representative shall establish with the operator a 
reasonable time period for the home to achieve full 
compliance. If the s e ction Division representative 
determines that the home is in compliance within 
the established time period, a Cenificate — erf 
Regist r ation license shall be issued. 

(3) If the home is not in compliance, caimot potentially 
comply, or fails to comply within the appropriate 
time, the section Division shall deny the 

application. and terminate the t e m p o r a r y 

permission to o p e r ate. Final disposition of the 
recommendation to deny is tlie decision of the 
Division. 

(f) In emergency situations as determined by the Division, 
the Division may allow the applicant to temporarily operate 
for a limited time prior to the Division representative's visit 
described in Paragraph (e) of this Rule. A person is not able 
to operate legally until he or slie lias received from the 
Division either temporary permission to operate or a license. 

(g) A person shall not apply for a child care facility license 
within 12 months after any child care facility license held by 
that person has been revoked or summarily suspended by the 
Department. If tlie person appeals the Department's 
revocation or summary suspension, the person shall not apply 
for a child care facility license during the appeal . If the 
revocation or summary suspension is affirmed on appeal, the 
petitioner shall not apply for a license within 12 months after 



the date of tlie final order affirming the revocation or 
summary suspension. 

ttl ihi Use of the certificat e license is limited to the 
following conditions: 

(+1 A C er tificate of Regist r ation r emains valid for a 

per iod of two yea r s unless terminated, revoked, or 
sus p ended. 
t^ tli The Certificate of Regist r ation license caimot 
be bought, sold, or transferred from one individual 
to another. 
^ (2) The Certificate of Regist r ation license is valid 
only for the location address/addresses listed on it. 
(4) ili The Cenificate of R e gist r ation license is th e 
p r o p e r ty of the State of No r th Carolina. It must be 
returned to the section Division in the event of 

termination or revocation. r evocation of 

r egist r ation. 

t5) ili The Ce r tificate of Regist r ation license shall be 

available displayed in a prominent place that 

parents are able to view daily and shall be shown to 

each child's prarent parent, o r guardian guardian, or 

custodian when the child is enrolled. 

ffl (il A regist r ant licensee is responsible for notifying the 

s e ction Division whenever a change occurs which affects the 

information shown on the Certificat e of R e gist r ation, license. 



Authority G.S. 
1 43 B- 168. 3. 



110-88(5): 110-91; 110-93; 110-99; 



. 1 703 RENEWAL OF REGISTRATION 

tsr) — Each re gistrant shall apply fo r r enewal of re gist r ation 
every two years. 

t+^ The section shall notify the r egist r ant of the need to 

r enew by s e nding the regist r ant the a p p r o pr iate 

forms, which — shaH include — a — self-check 

qu e stionnair e , not less than 60 days f r om th e 
expi r ation — date — of — the — cur re nt — Ce r tifica t e — of 
Regist r ation. 



t^ The r egist r ant shall r etu r n the com p leted forms to 

the s e ction not l e ss than 30 days pr io r t o the 
ex p i r ation — date — of — the — cu r r e nt — Ce r tificate — of 
Regist r ation. 

01 Re pr esentatives — of — the — section — shaH — make 

announced — and — scheduled — visits — tti — a — r andom 

sel e ction of registe re d homes p rior to r enewal, in 

acco r dance — wrth — the — section's — piari — d e velo pe d 

p ursuant to G.S. 110-105.1. — The p u rp os e of th e s e 

visits shall be to d e t e rmin e continu e d com p lianc e 

with the re gist r ation re qui re m e nts. 

tir) — When the section dctci mines that th e r egiste r ed home 

continues to comply with applicabl e re qui re m e nts, a new 

C er tificat e of R e gistration shall be issued. 

tci — Failu re to ap p ly fo r r enewal or regist r ation shall be 
grounds for termination of r egist r ation. 

Authority G.S. 110-88(3); 110-101; 143B-168.3. 



1122 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



.1705 HEALTH AND TRAINING REQUIREMENTS 
FOR FAMILY CHILD CARE HOME 
OPERATORS 

(a) Prior to receiving a license, each Each day family child 
care home operator shaH shall: com p l e te and kee p on file a 
health qucstiomiair e which attests t o th e o p e r ato r 's p hysical 
and emo t ional ability to care for child r en. — The section may 
r e quire a w r itten statement or medical e xamination r e p o rt 
signed by a licensed physician o r other autho r ized health 
professional if there is reason to believe that th e car e giv e r's 
h e al t h may adversely affect the care of the child r en. 

(b) Each day care home operator shall complete the health 
ques t ionnaire initially and p r ior to each re n e wal. 

(c) Each o p e r ator shall obtain w r itten p r oof that h e o r sh e 
is free of active tuberculosis prior to initial r egist r ation and 
e ach r enewal of r egist r ation. 

(1) Complete and keep on file a health questionnaire 
which attests to the operator's physical and 
emotional ability to care for children. The 
Division may require a written statement or medical 
examination report signed by a licensed physician 
or other authorized health professional if there is 
reason to believe that the operator's health may 
adversely affect the care of the children. 

(2) Obtain written proof that lie or slie is free of active 
tuberculosis. The results indicating the individual 
is free of active tuberculosis shall be obtained 
within 12 months prior to applying for a license. 

(3) Successfully complete within 12 months prior to 
applying for a license a basic first aid course that at 
a minimum, shall address principles for responding 
to emergencies, techniques for rescue breathing, 
and techniques for handling common childhood 
injuries, accidents and illnesses such as: choking, 
bums, fractures, bites and stings, wounds, scrapes, 
bruises, cuts and lacerations, poisoning, seizures, 
bleeding, allergic reactions, eye and nose injuries 
and sudden changes in body temperature. 

(4) Successfully complete within 12 months prior to 
applying for a license a course by the American 
Heart Association or the American Red Cross or 
other organizations approved by the Division, in 
cardiopulmonary' resuscitation (CPR) appropriate 
for the ages of children in care. Other 
organizations will be approved if tfie Division 
determines that the courses offered are substantially 
equivalent to those offered by the American Red 
Cross. Successfully completed is defined as 
demonstrating competency, as evaluated by the 
instructor, in performing CPR. Documentation of 
successful completion of the course from the 
American Heart Association, the American Red 
Cross, or other organization approved by the 
Division shall be on fife in tjie home. 

£b} After receiving a license, an operator shall: 
(1) Update the health questionnaire referenced in 
Paragraph (a) of this Rule annually. The Division 



may require the operator to obtain written proof 
that he or she is free of active tuberculosis. 

(2) Successfully complete a first aid course as 
referenced in Paragraph (a) of this Rule every three 
years. 

(3) Successfully complete a CPR course armually as 
referenced in Paragraph (a) of this Rule. 

(4) Complete 12 hours of annual in-service training in 
the topic areas required by G.S. 110-91(1 1). 

(A) Only training which has been approved by 
the Division as referenced in Rule .0708 of 
this Subchapter shall count toward the 
required eight hours of annual in-service 
training. 

(B) The operator shall maintain a record of 
annual in-service training activities in which 
lie or site has participated. The record shall 
include the subject matter, the topic area in 
G.S. 110-91(1 1) covered, the name of the 
training provider or organization, the date 
training was provided and tlie number of 
hours of training completed. 

Aulhorin G.S. 110-88: 110-91; 143B-168.3. 

.1716 FAILURE TO MAINTAIN REQUIREMENTS 

(a) If the section Division determines that a day family 
child care home operator fails to meet — and maintain 
compliance with the requirements for re gistration, licensure. 
the s e ction Division may establish a reasonable time period to 
allow the operator to achieve compliance or recommend 
issuance of a provisional license in accordance with Rule 
.0401 of this Subchapter. 

(b) If the operator fails to achieve compliance within the 
established time period, the section Division may deny. 
suspend, terminate, or revoke the r egist r ation, license. The 
operator may appeal any such action pursuant to the 
provisions of G.S. 150B. 

(c) The Section Division may recommend imposition of a 
civil penalty in accordance with the procedures set forth in 
Rules .2201 through .2205 of this Subchapter and according 
to the following schedules: 

(1) A civil penalty in an amount up to one thousand 
dollars ($1,000.00) may be imposed when the 
S e ction Division has substantiation that a child was 
abused or neglected while in the care of t he in a day 
family child care home. 

(2) A civil penalty in an amount up to two hundred 
dollars (S200.00) may be imposed for the following 
violations: 

(A) A histo r y Repeated incidents of exceeding 
the number of children allowed in a 
r egiste r ed day licensed family child care 
home; 

(B) Repeated incidences incidents where there 
has been a lack of supervision of the 
children; or 



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January 2, 1998 



1123 



PROPOSED RULES 



(C) Willful, repeated pattern of noncompliance 

with any requirement contained in this 

Subchapter or in the General Statutes. 

(3) A civil penalty in an amount up to one hundred 

dollars (SIOO.OO) may be imposed for the following 

violations: 

(A) Denial of entry to an authorized 
representative of the De p artment o r Section; 
Division: 

(B) Documented noncompliance with the number 
of children allowed in a registered day 
licensed family child care home; 

(C) Lack of supervision of the children in care; 
or 

(D) Failure to comply with a corrective action 
plan designed by the S e ction Division to 
correct noncompliance with any applicable 
requirement in this Subchapter or in the 
General Statutes. 

Authority G.S. ] 10-86(3); 1 10-88(1). (5). (6a): 110-91: 
110-98: 110-103.1: 110-105: 110-105.2: 110-106: 
143B-168.3: 150B-23. 

.1717 HEALTH. SAFETY AND SANITATION 
REQUIREMENTS 

tai — Each day care home shall com p ly with the following 
s t anda r ds in o r de r to maintain a safe, healthy and sanitarv " 
e nvi r onment fo r child re n : 



t+i 



To assu r e a 

-1- -11 . 
snail ! 



h e althy — e nvi r onment. — th e o per ato r 



tT^c^ have on file, fo r each child who attends 

r egular — basis. — a — hcaMr 



and 



trrra 
eme r gency 
information foim com p l e ted and signed by 

tht — child's — p a r ents — or — guardian. The 

com p leted foiri ' i shall be on file on the fi r s t 
day the child attends. A r ecommend e d foirn 
is available f r om th e s e ction. — Howeve r , the 
operator may us e anothe r form provided tha t 
form includes the following iiifoiinatioii. 

tn — the child's name, add re ss, and dat e of 

1. • ..1. 
ninn; 

frr) — the names of individuals to whom th e 

child mav be r eleased: 



trrH — the gene r al s t atus of the child's health: 
trri — any all e rgi e s o r re st r ictions on the 

child's p artici p ation in activities with 

s p ecific inst r uctions f r om the child's 

p a r ent o r p hysician: 
(rl the — names — and — p hone — numb er s — of 

per sons — tti — be — contac te d — m — an 

eme r g e ncy situation: 
tyt) the name and p hone numbe r of the 

child's p hysician and pre f erre d 

hos p ital: 
tVTr> autho r ization 



-for — the — o p e r ato r — to 
administe r s p ecified medication 



acco r ding to the p ar e nt's inst r uc t ions, 
if the p arent so d e sir e s: 

( viii) nota r ized autho r ization for the 

o p e r ato r to seek emergency medical 
ca r e in the p atent's absence. 

tfr) s e iTe nutritious meals and snacks appropriate 

in amount and type of foods se r ved fo r the 
ag e s of th e child r en in car e . 



tet- 



fo r outdoor 



ft)T 



tfcl pr ovide f r equent o pp o r tuniti e s 

p lay o r f re sh ai r . 
t&) pr ovide adequate and individual s p ac e 

each child to re st comfo r tably. 
ft) be able to re cognize symptoms of childhood 

illnesses. 
(P) pr ovide a quiet, se p a r ate area which can be 

e asily su per vis e d fo r child r en too sick to 

r emain with oth e r child r en. Parents shall be 

notified immediately if their child becomes 

too sick to r emain in care. 



rake 



visually su p e r vise all child r en who ai ' e awa 
and be able to h e ar and r espond quickly to 
those child r en who ar e sl eep ing or napping. 

tH") have completed a basic fi r st aid course 

within th e last th r ee years. The course, at a 
minimum. — shaH — add r ess — pr inci p les — for 
r es p onding to em er g e nci e s, techniques fo r 
rescue breathing, and techniques fo r handling 
common childhood in i uri e s. accidents and 



f r ac t i 



Illnesses such as : — choking, b ums, frac t u r es, 
bit e s and stings, wounds, sc r a p es, b r uis e s, 
cuts and lace r ations, — p oisoning, — seizu r es. 
bleeding, alle r gic r eactions, eye and nos e 
inju r ies — and — sudd e n — chang es — in — body 
temperature. 

tt) have succ e ssfully com p leted a c o u r se by th e 

Ame r ican Hear t Association or the Ame r i c an 
R e d C r oss in ca r dio p ulmonary r esuscita t ion 
(CPR) a p p r o pr iate fo r the ages of child r en in 
care — pr io r — to — r egist r ation — and — annually 
th ere aft er . Successfully com p le t ed is defined 
as d e monst r ating com p etency, as evaluated 
by — the — inst r ucto r , — in — p e rforming — CPR. 
Documentation of succ e ssful com p letion of 
the — cou r se — f r om — the — Ame r ican — Hea r t 
Association o r the Ame r ican Red Cross shall 
be on fil e in th e home. 

t^l To assu r e e ach child's health and w e ll-being, no 

child shall be subject e d to any form of co rp o r al 
p unishm e nt — by — the — day — care — home — o per ato r , 
substitut e ca re giv er , o r any other pe r son in t he 
hom e , wh e the r o r not these p e r sons r eside in the 
home. 

(tA) No child shall be handled r oughly in any 

way. including shaking, pushing, shoving, 
p inching, — sla pp ing, — biting. — kicking, — or 
s p anking. 
(ft) No child shall eve r be p laced in a lock e d 



1124 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



clos e t, or box. 



(€)- 



room. 

No discipline shall ever be delegated to 

another child. 

f©) Disci p line shall in no way be r elated to food, 

I ' cst or toileting. 
(i^ — No food shall be wi t hheld, o r given, 

as a means of disci p line. 
(tt) — No child shall ever be disci p lin e d fo r 

lapses in toilet t r aining. 
fm) — No child shall eve r be disciplined fo r 
not slee p ing during r est p e r iod. 

(3) — To assu r e a safe environment, the hom e o per ato r 

-1- -11 . 
snaii: 

(A)- 



m- 



ter 



m- 



tEh 



fF)- 



(e)- 



m- 



m- 



m- 



m- 



(fch 



tMt- 



(Nt- 



k e e p all areas used by the child r en, indoo r s 

and outdoors, r easonably clean and o r d e rly 

and — f r ee of items which are p o t entially 

haza r dous to child r en. — This includes th e 

removal of small i t ems tha t a child can 

swallow. — In addi t ion, loose nails o r sc r ews 

and s p linters shall b e re moved on inside and 

ou t side equi p ment. 

safely sto r e equi p ment and sup p lies such as 

lawnmowcrs, power tools, o r nails, so they 

are inacc e ssible t o children. 

ensure that all s t ationaiy outdoo r equi p men t 

is fiimly ancho r ed and is not install e d ov e r 

concre t e o r as p halt. — Footings which anchor 

the equipmen t shall not be ex p osed. 

s e cu re ly moun t elec tr ic fans ou t of the r each 

of child r en o r have a mesh guard on each 

tan. 

cov er all elect r ical outlets not in use and 

r emove old, — c r acked or f r ayed co r ds in 

occu p ied outlets. 

se p ara t e fircai ' ms and ammunition and sto r e 

bo t h in areas inaccessible to children. 

kee p items used fo r starting Fi r es, such as 

matches and lighters, out of the child re n's 

reach . 

kee p all medicin e s in locked s t o r age. 

kee p hazardous cleaning supplies and othe r 

items that might be p oisonous out of r e ach o r 

in — locked — sto r age — when — preschool-aged 

children arc in care, e .g., toxic p lants. 

ke ep — Fi r st-aid su pp lies — in a p lace easily 

accessible to the o per ato r . 

kee p the equipmen t and toys in good rep ai r 

and a ppr o pr iate for the ages of child r en in 

care . 

hav e — a — wo r king — tele p hone — within — close 

pr oximity of the day care home. Eme r gency 

p hone numbers shall be r eadily available. 

have access to a m e ans of t r ansportation tha t 

is always available for emergency situations. 

have solid, safe and r ailed stai r s and st ep s if 

these are used by the children. Indoor stairs 

with mo r e than two ste p s shall be guarded if 



any children in care are t wo years of age or 
younge r . 

fO) maintain any swimming p ools o r wading 

p ools on the pr emises in a manne r which will 
saf e guard — the — hves — and — health — of — the 
children. — All swimming pools used by day 
care — child r en — shaH — meet — the — "Rules 
Gove r ning — Public — Swimming — Pools," in 
acco r danc e with 15 A NCAC 18A .2500 
which are he r eby incor p o r ated by r efe r ence 
including subsequent amendments. — A co p y 
of these Rules is on file at the Division of 
Child Dev e lo p m e nt, 31 9 Cha p anoke Road, 
Raleigh, NC 27626, o r may b e obtain e d at 
no — cost — by — w r iting — the — North — Ca r olina 
De p artmen t — o f Environment, — Health — and 

Natu r al Resourc e s, Division of 

Envi r onmental Health. — PO Box 27687, 
Ral e igh, NC 27611-7687. 

fP^ — enclose any in-g r ound swimming p ools by a 
fence a ppr oximat e ly fou r feet high to prevent 
chanc e access by child r en. — The swimming 
p ool shall be se p arate f r om the p lay area. 
Access — to — the — wat er — in — abov e — grotmd 
swimming — p ools — shaH — be — prevented — by 
locking and securing the ladde r in p lace o r 
storing the ladder in a p lace inaccessibl e to 
the child r en. 

tO) — com p l e te — a — form — which — e xplains — the 

o p era t or's procedures in eme r gency 

situa t ions. The foiiii shall be su pp lied by the 
section. 

tft^ — p r actic e and maintain r eco r ds of monthly fi r e 
drills giving the date each d r ill is held, the 
time of day. and the length of time taken to 
evacuate the home. 

fS) make all necessary effo r ts to pr ovid e a saf e 

indoo r and outdoor environmen t fo r the 
child r en in care. Animals that are potentially 
dang er ous to children, such as p it bulldogs 
and r ottweilers or othe r animals determined 
by the S e ction to be dange r ous, a r e no t 
permitted on the pr emis e s of a day car e 
home? 

fF) com p lete an incident re po i l each time a child 

r eceives medical t r eatment by a p hysician. 

nurse, physician's assistant. rttffse 

pr actition er , — community — clinic. — or — local 
health d ep artment, as a r e sult of aji incid e nt 
occu rr ing whil e the child is in the day care 

home. This r e p o r t shall — include, — af— a 

minimum: child's name, date and time of 
incid e nt, — part — of body — injured. — type — of 
inju r y, location whe r e incident occu rr ed, 
equi p ment involved in inju r y (if any), names 
of adult witnesses to incident, desc r i p tion of 
how incident occu rr ed, ste p s taken to pr event 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1125 



PROPOSED RULES 



Hit- 



r c occu rr cnce, and t rea t ment received. — This 
r ep on shall be signed by t he opera t or and the 
pairnt and maintained in the child's file. — A 
co p y shall be mailed to the Division within 
s e v e n calenda r days after the incident occu r s. 

time an incident 



complete an inciden t l o g 
re p o r t — rs — comple t ed. — 



■STTf 

This log shall be 



t^t- 



cumula t ivc and main t ained in a se p a r ate file 

and — shall be available for r eview by a 

rep r esenta t ive of the Division. This log shall 

be comple t ed on a form su pp li e d by t he 

Division. 

complete a monthly check fo r hazards on the 

outdoo r p lay — area: The — form shall be 

e d in the dav care home for r e vi e w 



-TTter 



maintaincc 

by a re pr esentativ e of the Division. 

form shall be su pp lied by th e Division. 

(41 To assu r e the safe t y of child r en when e ve r they are 

trans p o r ted. the o p e r ato r . or any other 

transportation pr ovid er , shall : 

(7¥) have w r itten permission from a p arent o r 

guardian t o t r ansport his o r he r child and 

notifv' the p a r ent when and where the child is 

to be transported. 
ffi) — comply wi t h all a p plicable state and fede r al 

hrws — and — r egula t ions — conc er ning — the 

tr ans p ortation of p assenge r s. — All child r en 

regardless o f age o r loca t ion in the vehicle 

shall be res tr ained by individual scat belts o r 

child res tr ain t d e vices. 
(€1 have a valid d r iv er 's license issued by the 

Division of Moto r Vehicles, not including a 

limi t ed permit. 
tB) assure — that — each — ehtfd — ts — seated — m — a 

manufactu r e r 's designa t ed area. 
tft n e v er l e av e childr e n in a vehicle unattended 

by an adult. 
if) have emergency and identification 

information about each child in the vehicle 

wheneve r child r en a r e being t r ans p o rt ed. 

^ — To assu r e a sani t ary environm e n t , t he o p erator 
■ 1. .11 

Slldll . 

tAi collec t and submit sam p les of wate r f r om 

each well — twed — fo r th e — child r en's wate r 
su pp ly fo r bact er iological analysis to th e 
local — h e alth — d ep artm e n t — or — a — labo r atory 
c ert ifi e d to analyz e d r inking wat er fo r p ublic 
wa t e r — su pp lies — by — the — No rt h — Carolina 
Division of Laborato r y — Se r vices prior to 
r egist r ation — and — before — each — renewal. 
Results of the analysis shall b e on file in the 
home . 

(ft have sanitan * toilet, dia per changing and 

handwashing facilities. 

t^l p lace soiled dia p e r s in a cove re d, l e ak- pr oof 

containe r — which — is e m p ti e d — and — clean e d 
daily. 



01 wash his o r he r hands befo r e handling food 

and feeding the child re n. 
td wash his or h e r hands befo r e, as well as 

after, diape r ing each child. 
tF3 use sanitary pr ocedu r es when pr e p a r ing and 

se r ving food. 
t€r^ r ef r ige r ate all p e r ishable food and beve r ages. 

The r ef r ig er ato r shall be in good r e p air and 

ma i ntain — a — tem per atu re — of — 45 — deg r ees 

Fah r enh e it — or — below. A — r ef r igerator 

tliLiiuoiuLiLi — K — r equi re d — tc» — moni t o r — the 

t e m pe ratur e . 
(H) label all bottl e s for each individual child, 

exce pt when the r e is only one bottle-f e d 

child in care. 
tf) serve — orrty — p as t eurized — mtfk — and — mrfk 

pr oducts. 

tJj have a house that is f r ee of r odents. 

(K^ sc r een all — windows — and doors — ttscd — for 

ventilation. 
ttr) have — aH — household pets — vaccinat e d with 

u p -to-date vaccinations as re qui r ed by North 

Ca r olina law and local o r dinanc e s. — Rabies 

vaccinations ar e re quired for cats and dogs. 
tMl sto r e garbage in water pr oof containe r s with 

tight fitting cov er s. 



fN^ provide individual li 



-for 



individuaj linens to r r est time 

each child in care fo r more than fou r hou r s. 

The — linens — shaH — be — chang e d — weekly o r 

wh e n e v er they become soiled o r wet. 

(b) The o p e r ato r shall assu r e that the st r uctu re in which the 

day — car e hom e — is located com p lies with the — following 

r equi r ements: 

t+» — Com p ly with Section 50 9 .2 of the North Carolina 

Building Code or have w r itten ap p roval fo r use as a 

day care hom e by th e local building inspec t or as 

follows : 

fA-) Meet — Volume — f=B — Uiiifoim — Residential 

Building Cod e o r b e a manufactu r ed home 
bea r ing — a — third — party — ins p ection — labci 
certifying — com p liance — with — the — Fed e ral 
Manufactu r ed Home Const r uction and Safety 
Standards — or — certifying — compliance — with 
const r uction standards ado p ted and e nforc e d 
by th e Stat e of North Carolina. Hom e s shall 
be — installed — in — acco r dance — with — North 

Carolina Manufac t u r ed/Mobile Home 

Regulations p ublished by the NC Department 
of Insu r anc e . 

Exce p tion : Single wide manufactu r ed homes 
wiii — be — limited — to — a maximum of th r ee 
pr eschool-aged child r en (not mo r e than two 
may be two yea r s of age o r less) and two 
school-aged children. 

fBi All child r en shall be ke p t on the g r ound l e v e l 

with an e xit at g r ade 

(€i AH — hcrmes — shaH — be — equi pp ed — xvith — an 



1126 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



) 



elec tr ically ope r a t ed (with a batte r y backu p ) 
smoke de t ector, or one elect r ically o p e r ated 
and one battciy o pe rated smoke detec t o r 
loca t ed next to each o t he r . 

fB^ All homes shall be pr ovided with a t leas t one 

five lb. 2-A : lQ-D:C ty p e extinguisher readily 
accessible for every 2,500 square feet of 



floor area. 



-and 



fE) Fuel burning s p ace heaters, fir ep lac e s 

floor furnaces which are listed and approved 
for tha t ins t allation and ai ' c provided with a 
protective — screen — at t ached — secu r ely — to 
substantial — su pp o r ts — wiH — be — allowed. 
However, unvented fuel bu r ning heate r s and 
portable elect r ic s p ace heaters of all t y pe s are 
pr ohibited. 
f2) Assu r e that all indoo r a r eas used by child r en a r e 

adequately heated in cool weathe r and ventilated in 

wai ' in weather. 
(3^ Cove r o r insulate hot p i p es or radiators which a r e 

accessible to the children. 



Authority G.S. 110-88(3); 110-101; 143B-168.3. 

.1718 REQUIREMENTS FOR DAILY OPERATIONS 

The operator shall provide the following on a daily basis 
for all children in care: 

(1) meals and snacks which contain the food groups 
outlined in the Basic Four Food Guide which is 
based on the recommended nutrient intake judged 
by the National Research Council to be adequate 
for maintaining good nutrition. The number and 
size of servings shall be appropriate for the ages 
and developmental levels of the children in care as 
approved by the Commission. The National 
Research Council nutrition standards for children 
are incorporated by reference and include 
subsequent amendments. A copy of these standards 
is available free of charge from the Division at the 
address in Rule .0102 of this Subchapter, 
(a) No child shall go more than four hours 
without a meal or a snack being provided. 
Drinking water shall be freely available to 
children and offered at frequent intervals. 
When milk, milk products, or fruit juices are 
provided by the operator, only pasteurized 
products or products which have undergone 
an equivalent process to pasteurization shall 
be used. Any formula which is prepared by 
the operator shall be prepared according to 
the instructions on tlie formula package or 
label, or according to written instructions 
from the child's health care provider. 
Each infant will be held for bottle feeding 
until able to hold his or her own bottle. 
Bottles will not be propped. Each child will 
be held or placed in feeding chairs or other 



im 



lei 



(dl 



age-appropriate seating apparatus to be fed. 

(2) frequent opportunities for outdoor play or fresh air. 

(3) an individual sleeping space such as a bed, crib, 
play pen, cot, mat, or sleeping bag with individual 
linens for each pre-school aged child in care for 
four hours or more, or for all children if overnight 
care is provided, to rest comfortably. The linens 
shall be changed weekly or whenever they become 
soiled or wet. 

(4) a quiet, separate area which can be easily 
supervised for children too sick to remain with 
other children. Parents shall be notified 
immediately if their child becomes too sick to 
remain in care. 

(5) visual supervision for all children who are awake. 
The operator shall be able to hear and respond 
quickly to those children who are sleeping or 
napping. 

(6) developmentallv appropriate activities as planned 
on a written schedule. Materials and/or equipment 
shall be available to support the activities listed on 
the written schedule. The written schedule shall: 

(a) show blocks of time usually assigned to 
types of activities and shall include periods 
of time for both active play and quiet play or 
rest: and 

(b) be displayed in a place where parents are 
able to view: and 

(c) reflect daily opportunities for both free- 
choice and guided activities. 

Authority G.S. 110-88; 1 10-91 (2). (12). 

.1719 REQUIREMENTS FOR A SAFE 

INDOOR/OUTDOOR ENVIRONMENT 

The operator shall make all necessary efforts to provide a 
safe indoor and outdoor environment for the children in care. 
The operator shall: 

(1) keep all areas used by tlie children, indoors and 
outdoors, reasonably clean and orderly and free of 
items which are potentially hazardous to children. 
This includes the removal of small items that a 
child can swallow. In addition, loose nails or 
screws and splinters shall be removed on inside and 
outside equipment. 
£2} safely store equipment and supplies such as 
lawnmowers. power tools, or nails, so they are 
inaccessible to children. 

(3) ensure that all stationary outdoor equipment is 
firmly anchored and is not installed over concrete 
or asphalt. Footings which anchor the equipment 
shall not be exposed. 

(4) securely mount electric fans out of the reach of 
children or have a mesh guard on each fan. 

(5) cover all electrical outlets not rn use and remove 
old, cracked or frayed cords in occupied outlets. 

(6) have solid and safe indoor and outdoor stairs and 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1127 



PROPOSED RULES 



steps if these are used by the children. Indoor and 
outdoor stairs with two or more steps which are 
used by the children shall be railed. Indoor stairs 
with more than two steps shall be made inaccessible 
to children m care who are two years old or 
younger. 

(7) maintain any swimming pools or wading pools on 
the premises in a manner which will safeguard the 
lives and health of the children. All swimming or 
wading pools used by children in care shall meet 
the "Rules Governing Public Swimming Pools." in 
accordance with 15A NCAC 18A .2500 which are 
hereby incorporated by reference including 
subsequent amendments. A copy of these Rules is 
on file at the Division at the address given in Rule 
.0102 of this Subchapter, or ma>- be obtained at no 
cost by writing the Nonh Carolina Department of 
Environment and Natural Resources. Division of 
Environmental Health. PO Box 27687. Raleigh. 
NC 27611-7687. 

(8) enclose any in-ground swimming pools by a fence 
appro.ximatelv four feet high to present chance 
access by children. The swimming pool shall be 
separate from the play area. Access to the water in 
above ground swimming pools shall be prevented 
by locking and securing the ladder in place or 
storing the ladder in a place inaccessible to the 
children. 

(9) ensure that animals that are potentialh' dangerous to 
children as determined by the Division are safely 
secured in areas not accessible to the children in 
care. 

AuthorinG.S. 110-88: 1 10-91(3). (4). (5), (6). 



iSi 



(9) be able to 



.1720 

lai 
shall: 
ill 

01 

ill 
iil 



ill 
161 

01 



SAFETY AND SANITATION 
REQUIREMENTS 

To assure the safety of children in care, the operator 

separate firearms from ammunition and keep both 

in locked storage. 

keep items used for staning fires, such as matches 

and lighters, out of the children's reach. 

keep all medicines in locked storage. 

keep hazardous cleaning supplies and other items 

that might be poisonous, e.g.. toxic plants, out of 

reach or in locked storage when children are in 

care. 

keep first-aid supplies in a place easily accessible to 

the operator. 

ensure the equipment and toys are in good repair 

and are de\'elopmentally appropriate for the 

children in care. 

ha\e a working telephone within the family child 

care home. Telephone numbers for the tire 

depanment. law enforcement office, emergency 

medical service, and poison control center shall be 



posted near the telephone. 

have access to a means of transportation that is 
always available for emergency situations, 
be able to recognize common symptoms of 
illnesses, 
(b) No drug or medication shall be administered to any 
child without specific instruction's from the child's parent, a 
physician, or other authorized health professional. 

( 1 ) Prescribed medicine shall be in its original 
container bearing the pharmacist's label which lists 
the child's name, date the prescription was filled, 
the physician's name, the name of the medicine or 
the prescription number, and directions for dosage. 
or be accompanied by written instructions for 
dosage, bearing the child's name, which are dated 
and signed by the prescribing physician or other 
health professional. Prescribed medicine shall be 
administered only to tlie person for whom it is 
prescribed. 
01 Over-the-counter medicines, such as cough syrup, 
decongestant, acetaminophen, ibuprofen. topical 
teething medication, topical antibiotic cream for 
abrasions, or medication for intestinal disorders 
shall be in its original container and shall be 
administered as authorized in writing by the child's 
parent, not to exceed amounts and frequency of 
dosage specified in the printed instructions 
accompanying the medicine. The parent's 
authorization shall give the child's name, the 
specific name of the over-the counter medicine, 
dosage instructions, the parent's signature, and the 
date signed. Over-the counter medicine may also 
be administered in accordance with instructions 
from a physician or other authorized health 
professional. 

(3) When any questions arise concerning whether 
medication provided by the parent should be 
administered, that medication shall not be 
administered without signed, written dosage 
instructions from a licensed physician or authorized 
health professional. 

(4) A written statement from a parent may give blanket 
permission for up to six months to authorize 
administration of medication for asthma and 
allergic reactions. A written statement from a 
parent ma\' give blanket permission for up to one 
year to authorize administration of topical 
ointments such as sunscreen and o\er-the-counter 
diapering creams. The written statement shall 
describe the specific conditions under which the 
medication and creams are to be administered and 
detailed instructions on how they are to be 
administered. A written statement from a parent 
ma\' gi\'e blanket permission to administer a one- 
time, ueight appropriate dose of acetaminophen in 
cases where the child has a fever and the parent can 
not be reached. 



1128 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



(5) Any medication remaining after the course of 
treatment is completed shall be returned to the 
child's parents. 

(6) Any time the operator administers medication other 
than sunscreen and diapering creams to any child in 
care, the child's name, the date, time, amount and 
type of medication given, and the signature of the 
operator shall be recorded. This information shall 
be noted on a form provided by the Division or on 
a separate form developed by the operator which 
includes the required information. This 
information shall be available for review by a 
representative of the Division during the time 
period the medication is being administered and for 
at least six months after the medication is 
administered. 

(c) To assure the health of children through proper 
sanitation, the operator shall: 

(1) collect and submit samples of water from each well 
used for the children's water supply for 
bacteriological analysis to the local health 
department or a laboratory certified to analyze 
drinking water for public water supplies by the 
North Carolina Division of Laboratory Services 
prior to registration and before each renewal. 
Results of the analysis shall be on fik in the home. 

(2) have sanitary toilet, diaper changing and 
handwashing facilities. Diaper changing areas shall 
be separate from food preparation areas. 

(3) use sanitary diapering procedures. Diapers shall be 
changed whenever they become soiled or wet. The 
operator shall: 

(A) wash his or her hands before, as well as 
after, diapering each child. 

(B) wash the child's hands after diapering the 
child. 

(C) place soiled diapers in a covered, leak-proof 
container which is emptied and cleaned 
daily. 

(4) use sanitary procedures when preparing and serving 
food. The operator shall: 

(A) wash his or her hands before and after 
handling food and feeding the children. 

(B) wash the child's hands before and after the 
child is fed. 

(5) refrigerate all perishable food and beverages. The 
refrigerator shall be in good repair and maintain a 
temperature of 45 degrees Fahrenheit or below. A 
refrigerator thermometer is required to monitor the 
temperature. 

(6) date and label all bottles for each individual child, 
except when there is only one bottle-fed child in 
care. 

(7) have a house that is free of rodents. 

(8) screen all windows and doors used for ventilation. 

(9) have aU household pets vaccinated with up-to-date 
vaccinations as required by North Carolina law and 



01 
13} 



local ordinances. Rabies vaccinations are required 
for cats and dogs. 
(10) store garbage in waterproof containers with tight 

fitting covers, 
(d) Children shall be toilet trained according to individual 
readiness. 

Authority G.S. 110-88; 110-91(6). 

.1721 REQUIREMENTS FOR RECORDS 

(a) The operator shall maintain the following health 
records for each child who attends on a regular basis: 

(1) a copy of the child's health assessment as required 
bv G.S. 110-91(1). 

a copy of the child's immunization record. 
a health and emergency information form provided 
by the Division that is completed and signed by the 
child's parents or guardian. The completed form 
shall be on file tlie first day the child attends. An 
operator may use another form other than the one 
provided by the Division, as long as the form 
includes the following information: 

(A) the child's name, address, and date of birth: 

(B) the names of individuals to whom the child 
may be released: 

(C) the general status of the child's health: 

(D) any allergies or restrictions on the child's 
participation in activities with specific 
instructions from the child's parent or 
physician: 

(E) the names and phone numbers of persons to 
be contacted in an emergency situation: 

(F) the name and phone number of the child's 
physician and preferred hospital: 

(G) notarized authorization for the operator to 
seek emergency medical care in tlie parent's 
absence. 

(4) when medication is administered, authorization for 
the operator to administer the specific medication 
according to the parent's or physician's 
instructions. 

(b) The operator shall complete and maintain other records 
which shall include: 

(1) documentation for the operator's procedures in 
emergency situations, on a form which shall be 
provided by tlie Division: 

(2) documentation that monthly fire drills are 
practiced. The documentation shall include the 
date each drill is held, the time of day, the length 
of time taken to evacuate the home, and the 
operator's signature. 

(3) incident reports that are completed each time a 
child receives medical treatment by a physician, 
nurse, physician's assistant, nurse practitioner, 
community clinic, or local health department, as a 
result of an incident occurring while the child is in 
the family child care home. Each incident shall be 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1129 



PROPOSED RULES 



(4i an 



reported on a form provided bv the Division, 
signed by the operator and the parent, and 
maintained in the child's file. A cop\' shall be 
mailed to a representatue of the Division mthin 
seven calendar days after the incident occurs. 
an incident log which is filled out anv time an 
incident report is completed. This log shall be 
cumulative and maintained in a separate file and 
shall be a\ailable for re\ie\v bv a representative of 
the Division. This log shall be completed on a 
form supplied bx the Division, 
documentation that a monthlv check for hazards on 
the outdoor play is completed. This form shall be 
supplied bx the Division and shall be maintained in 
the family child care home for review bx a 
representative of the Division. 



Aiuhonn G.S. 110-88: 110-91(1). (9). 



t5i 



belts or child restraint devices. Only one person 
shall occupy each seat belt or child restraint device. 

(3) ha\e a \alid driver's license issued by the Di\ision 
ot' Motor Vehicles, not including a limited permit. 

(4) ensure that each child is seated in a manufacturer's 
designated area. 

(5) ensure that a child shall not occupy the front seat if 
the vehicle has an operational passenger airbag. 

(6) never leave children in a vehicle unattended bx an 
adult. 

(7) have emergency and identification information 
about each child in tlie \ehicle whenever children 
are being transponed. 

Authorin G.S. 110-91: 110-91(13). 

SECTION .2500 - DAY CARE FOR SCHOOL- AGE 
CfflLDREN 



.1722 DISCIPLINE POLICY 

(a) The operator shall pro\ide a written cop\- of and 
explain the operator's discipline practices to each child's 
parent, legal guardian, or full-time custodian at ilie time of 
enrollment. If an operator changes discipline practices, the 
child's parent, legal guardian, or full-time custodian must 
recei\e written notice of tlie nev.' policy 30 da\s prior to the 
implementation of tlie new policy. 

(b) No child shall be subjected to anx form of corporal 
punishment bx the fainih' child care home operator, substitute 
caregi\er. or anx other person in tlie home, whether or not 
these persons reside in tlie home. 

(c) No child shall be handled roughh- in anx wav , 
including shaking, pushing, shoving, pinching, slapping, 
biting, kicking, or spanking. 

(d) No child shall ever be placed in a locked room, closet. 
or bo.\. 

(e) No discipline shall ever be delegated to another child. 

(f) Discipline shall in no way be related to food, rest or 
toileting. 

( 1 ) No food shall be withheld, or given, as a means of 
discipline. 

(2) No child shall ever be disciplined for lapses in 
toilet training. 

(3) No child shall ever be disciplined for not sleeping 
during rest period. 

Authorin- G.S. 110-91(10). 

.1723 TRANSPORTATION REQLTREMENTS 

To assure the safet\' of children whenever thev are 
transponed. the operator, or arw other transponation 
provider, shall: 

( 1 ) have written permission from a parent or guardian 
10 transpon his or lier child and notif\- the parent 
when and where the child is to be transported. 

(2) ensure that all children regardless of age or location 
in tlie vehicle shall be restrained h\ individual seat 



.2506 CENTRAL SAFETY REQLTREMENTS 

(a) First aid equipment shall always be available regardless 
of where activities are provided. 

(b) All regulations in Rule .1403 regarding swimming 
pools apply. 

(c) Potentially hazardous items, such as archer>' 
equipment, firearms and ammunition, hand and power tools, 
propane stoves, or chemicals shall be used by children only 
when adult supervision is provided. Such potentially 
hazardous items, whether or not intended for use by the 
children, shall be stored in locked areas or with other 
appropriate safeguards, or shall be removed from the 
premises. 

(d) All e qui p ment, materials and facilities used by child r en 
shall be in good r e p ai r , of safe d e sign, and p roperly installed. 
All children shall be adequately supen,'ised. .Adequate 
super\ision for children aged nine \'ears and older means that 
staff shall be able to hear or see tlie children at all times. 

(e) Children shall wear life jackets whenever they 
participate in boating, rafting or canoeing activities, activities 
and children riding bicycles shall wear bicycle safet>- helmets. 

Authority G.S. 110-91: 143B-168.3. 

.2510 STAFF QL.\LinCATIONS 

ttr) — The staff r equirements in Section .0700 shall apply to 



; d on a full \ ' ear ba^is 



any school-ag e pr og r am wnich is operatec 

as — a — tmrt — of a — facility — which — aho — pr ovid e s — care — to 

p r eschool-age child r en. 

(b) Each day camp or befo r e o r after-school p rogram shall 
hav e an administ r ato r on sit e who is at l e ast 21 years old and 
has at least on e y e ar of full-time exp er i e nce o r two summ er s' 
ex per i e nce wo r king with school-age child re n in a day care o r 
cam p s e tting. 



who is at least 



re) — the r e shall b e at least one start person 
18 years old and lit er at e fo r e ach g r ou p of 25 child re n 
present. 

(a) The following staff requirements shall apply to a part- 



1130 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



time school-age or seasonal school-age program: 

(1) The individual who is responsible for ensuring the 
administration of the program, whether on-site or 
off-site, shall: 

(A) Be at least 2 1 years old and have at least one 
year of full-time experience or two summers' 
experience working with school-age children 
in a school-age care or camp setting prior to 
employment: and 

(B) Meet the requirements for a child care 
administrator in G.S. 110-91(8). 

(2) Each individual who is responsible for plaiming 
and ensuring the implementation of daily activities 
for a group of school-age children shall: 

(A) Be at least 18 years old and have a high 
school diploma or its equivalent prior to 
employment: and 

(B) Have c ompleted two semester credit hours in 
child and youth development and two 
semester credit hours in school-age 
programming. Each individual who does not 
meet this requirement shall enroll in 
coursework within six months after 
becoming employed or by January L, 1999. 
whichever is later, and shall complete this 
coursework within 18 months of enrollment. 

(3) All other staff shall be at least 16 years of age and 
complete seven clock hours of school-age program 
training approved by the Division. The school-age 
program training shall include the following topics: 
child care regulations: quality school-age care: 
school-age child development: positive behavior 
management practices: age-appropriate activities: 
curriculum and environmental design: and health, 
safety, and playground training. 

(A) Staff in part-time school-age programs shall 
complete the school-age program training 
within three months of becoming employed. 

(B) Staff in seasonal school-age programs shall 
complete the school-age program training 
within six weeks of becoming employed. 

Co) The following staff requirements shall apply to a 
school-age program that operates on a Ml year basis and 
offers full time care for school-age children: 

(1) The individual who is responsible for the 
administration of tlie program, whether on-site or 
off-site. shall meet the requirements in 
Subparagraph (a)(1) of this Rule. 

(2) Each individual who is responsible for planning 
and implementing the daily activities for a group of 
school-age children shall meet the requirements in 
Subparagraph (a)(2) of this Rule. 

(3) All other staff shall meet the requirements in 
Subparagraph (a)(3) of this Rule within three 
months of becoming employed. 

(c) The following staff requirements shall apply to a 
school-age program which operates on a full year basis as a 



component of a center which also provides care to preschool - 
age children: 

(1) The individual who is on-site and responsible for 
the administration of the program shall meet the 
requirements for child care administrator in G.S. 
110-91(8) and Section .0700 of this Subchapter. 

(2) Each individual responsible for planning and 
implementing the daily activities for a group of 
school-age children in the school-age component of 
the program shall: 

(A) Meet the requirements in Subparagraph 
(a)(2) of this Rule: or 

(B) Have a North Carolina Early Childhood 
Credential or its equivalent and complete the 
school -age program training described in 
Subparagraph (a)(3) of this Rule within three 
months of becoming employed. 

(3) All other staff working in the school-age 
component of the program shall complete the 
school-age program training described in 
Subparagraph (a)(3) of tlm Rule within three 
months of becoming employed. 

(d) The special training requirements in Rule .0705 shall 
apply to all programs for school-age children. 

(e) Whenever children participate in swimming or other 
aquatic activities, the following provisions shall apply: 

(1) The children shall be supervised by persons having 
life saving certificates, issued by the Red Cross or 
other issuing entity approved by the Section, 
Division appropriate for the type of body of water 
and type of aquatic activities: 

(A) One lifeguard is required for groups of 25 or 
fewer children. 

(B) Two lifeguards are required for groups of 26 
or more children. 

(2) A person with lifeguard certification is not required 
when there are no more than 12 children present 
and the body of water has no portion deeper than 
30 inches and the total surface area is not more than 
400 square feet. The children shall be supervised 
by at least one adult who is certified to perform 
cardiopulmonary resuscitation appropriate for the 
ages of children in care. 

(f) All staff shall participate in at least six three hours of 
documented orientation related to the program's policies, 
activities and child safety pr io r to within six weeks of 
assuming responsibility for supervising a group of children. 

(g) The health requirements for staff and volunteers in 
Rule .0701 - .0702 shall apply. 

(h) All staff under age 18 counted toward meeting the 
required staff/child ratio shall work under the direction of 
another staff person at least 21 years of age. 

(i) When an individual has responsibility for both 
administering the program and plaiming and implementing 
the daily activities of a group of school-age children, the staff 
requirements in Subparagraph (a)(1) of this Rule shall apply. 

{j} Completion of the seven clock hour school-age program 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1131 



PROPOSED RULES 



training shall count toward meeting one \ear's annual on- 
going training requirements in Section .0700 of this 
Subchapter. 

Authorm- G.S. 1 10-91 (8). (11): 143B-168.3. 

SECTION .2600 - REQUIREMENTS FOR LARGE DAY 
CARE HOMES 

.2601 SCOPE 

TliL Rules in this Sec t ion apply t o la r ge child day ca r e 
homes. — A large cliild day care home o r la r g e hom e shall 
routinely p r ovide care to no mo r e than 12 child r en when any 
preschool-age child is in care, o r wh e n all child r en pr esent 
ar e school -age. to no more than 15 child re n, exc ep t as 
allowed by Rule .0102 of this Subcha p te r . — All child r en 
pr esent. C-\ce pt the o p e r ato r 's own school-age child r en, shall 
b e included in the ma.ximum number of child r en allowed to 



Authority G.S. 110-86(3); 143B-168.3. 

.2602 GENERAL PROVISIONS FOR LICENSLTIE 

(a> Th e pr ovisions contained in Section .0200 for licensing 
child day care cent er s shall apply to la r ge homes. 

(b) The individual l e gally r es p onsible for the o p e r ation of 
the hom e shall a pp ly fo r a lic e ns e and for annual r enewal of 
the license using forms provided by the section. 

ic) The a pp licant/o p e r a t o r is re s p onsible for arranging for 
ins pe ctions of the home by the local saniia r iatT, building and 
fir e safety ins p ecto r s in accordance with the pr ovisions of 
Rules .0302(b) and .0303(a). 

t&) — Th e a pp licant/o p e r ato r is r es p onsible fo r com p lianc e 
with all othe r stat e laws and local o r dinances which apply to 
th e o per ation of a child day care facility. 

tn — When the o p e r ato r of a la r g e hom e has demonstrated 



r equi r em e nts fo r e me r gency care plans, disci p lin e 
p olicy, daily schedules, incident repo r ts, incident 
logs and a desc r i p tion of activiti e s. 

01 The a pp licant shall p rovide documentation of his or 

he r and any othe r staff's concu r rence with th e 
r equi r ements fo r staff education and ex p eri e nc e , 
health condition and, if r equested, minimum age. 

(4-) The a pp licant shall pr ovide infouriation which 

demonst r ates how com p liance will b e achieved with 



thc- 



r ements fo r re co r ds of child r en's health 



r cqui 

conditions. immunizations, and eme r gency 

information, daily att e ndance, monthly p layground 
ins p ections, administe r ing medication, and r ecords 
of monthly fi r e d r ills. 

t5j The applicant shall have available o r provide a 

desc r i p tion of th e p lans to obtain equi p m e nt and 
p lay mate r ials in suffici e nt quantity to com p ly with 
the r equi r ements fo r age-a ppr op r iate activities. 

t6l The — a p plicant shall — ensu r e — that approved — frrcr 

building and sanitation r e p o r ts are obtained and 
pr ovided to the section. 
tcl — A r e pr esentative of the section shall measu r e floo r 
s p ac e in the p an of the home which is used fo r day care to 
assu r e com p liance with th e s p ac e re quirements. 

(d) If the large home is found to be in compliance with the 
ap p licable r equi r ements of G.S. — 110 and this Section, a 
lic e nse shall be issued. 



tri — If the large home is not in compliance with the 
r equi r ements, — the — section — may — issue — a pr ovisional — o r a 
t e m p orai7 lic e ns e or may deny the a pp lication. 



Authority G.S. 110-86(3); 110-88(5); 
110-93; 143B-168.3. 



110-91; 110-92; 



.2604 LICENSE RENEWAL PROCESS 

(a) Each large hom e o pe rato r shall apply for r enewal of the 
com p lianc e with all a pp licable re qui r ements, a license shall license annually acco r ding to the pr oc e dures desc r ibed in 
be — issued — fo r a p e r iod — of time — not — to exc ee d — twefve Rule .0303(a). 
consecutiv e months. 



tf) — When a la r ge home do e s not com p ly in eve r y r espect 
with the licensing r equi r ements, and the s e ction detci mines 
that the a pp licant/o p e r ato r is making a r easonabl e e ffo r t to cu rr ent license. 



tbt The — o per ato r — shaH — submit — a completed, — signed 

a pp lication fo r r e n e wal and a ppr ov e d insp e ction repor t s to the 
section at least 30 days befo r e the ex p i r ation dat e of th e 



com p ly, the s e ction may issue a pr ovisional o r a t e m p o r ary 
license in acco r dance with the pr ovisions of Section .0400. 

Authority G.S. 110-88; 110-93; 1 43 B- 168. 3. 

.2603 LICENSING PROCESS 

(a) A r e p r e s e ntative of the section shall make one o r mo re 
announced visits to th e home to determine com p liance with 
the re qui r ements pr io r to issuanc e of th e initial license. 

tbi — Befo r e the initial lic e nse is issued, the a pp licant shall 
demons t rate com p liance in the following mann er: 

<+) Th e ap p licant shall submit a compl e t e d, signed 

application to the s e ction. 

f^ The — a pp licant — shaH — make — w r itten — information 

available to vrrrfy — compliance wnh — the 



(c) A r e pr esentative of the section shall make one o r mo r e 
announc e d visits to the home to detciminc com p liance with 
th e re quir e m e nts. 

tdl — If th e s e ction d c tci mines that the home continues to 
com p ly with all applicabl e r e quir e m e nts, a new license shall 
be issued to the home o p e r ato r . 

( e ) If th e s e ct i on determines that the home does not comply 
with all re quir e m e nts, th e s e ction may issue a provisional 
lic e ns e o r may d e ny the application fo r re n e wal. 

Authority' G.S. 110-88; 110-93; 143B-168.3. 

.2605 MAINTAINING COMPLIANCE 

fai — Each la r ge home o p e r ato r is e x pe cted to maintain 
com p liance with all the requi r ements fo r licensu r e at all 



1132 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



times. 



4f- 



-of — the — sectkm — documents 



a — icprescnta t ive 
iioiicompliancc with any r equi r ement in a licensed la r ge 
liomc, the home o p erato r shall be given written notification of 
llic area of noncompliance and the action needed t o correct it. 
Unless conditions in the home pose an immediate threat to the 
h e alth oi safety of the child re n, the home o p erator will be 
given — a — r e asonable — pe r iod — of — time — to — co rr ect — the 
u u ncompliance. 

(l) If the home operato r fails to com p ly o r fails t o achiev e 
com p liance wi t hin the specifi e d t ime per iod, the sec t ion may 
initiate appro pr iat e adminis t rative action in accordance with 
the i - ulcs fo r administ r a t ive p enalties in Section .2000. 

fti) — The operator may appeal such action in acco r dance 
with the provisions of G.S. 150D-23. 

Authority G.S. 110-88: 110-98; 143B-168.3. 

.2606 STAFF REQUIREMENTS 

(a) Tlie o p e r ato r of a large home shall be the per son who is 
on site and has the primaiy responsibility for the daily 
operation of the day care home. 

(b) The operator shall be at l e as t 21 yea r s old and lite r ate 
and shall have completed at least on e yea r of full- t ime 



caregiving ex p e r ience in a r egiste re d o r licensed child day 
ca r e home o r center or hav e e quival e nt child care experience 
that can be ve r ified. 

fc) — All othe r staff r equired to meet the staff/child r atios 
specified in Rule .2607 shall b e at least 16 years old and 
literate; and if less t han 18 years old. shall work under the 
direct sup er vision of the o p e r a t o r o r othe r s t aff p e r son who is 
at leas t 21 years old. 

(d) No one who is und e r th e age of 18 y e ars shall be left in 
charge of the home o r shall b e sol e ly res p onsible for the cai - e 
of children. 

ir) — All s t aff shall meet t he health standa r ds for s t aff s et 
fo r th in Rule .0701 of t his Subcha p ter. 

(f) The o p e r ato r of each large home shall com p ly with the 
s p ecial — t r aining — requirements — m — Rttk — .0705 — m — this 
Subcha p te r . 

(g) The opera t o r and each staff pe r son r equi r ed to meet the 
staff/child — ratio — shaH — p articipate — in — in-se r vice — t r aining 
activities in acco r dance with the pr ovisions of Paragraphs (b), 
(c) and (d) of Rule .0707, and with Rule .0708 of this 
Subcha p te r . 

Authority G.S. 110-86(3); 110-91 (8), (11); 143B-168.3. 



.2607 STAFF/CHILD RATIOS AND SUPERVISION 

(a) The staff/child ratios and g r ou p sizes fo r a large child day cair home ar e as follows: 
Age of Children N o . Child r en No. Staff Group Size 

t o 4 years 5 + ^0 



Maximum 
No. Staff 

2 



Maximum 
Age of Child r en 
t o 1 3 years 



No. Child r en 

5 



No. Staff 



Group Siz e 



No. Staff 

2 



Maximum 
Age of Child r en 

2 t o 13 years 

3 to 13 years 
All School-ag e d 



Nnr 



Child r en 

+5 



No. S t aff 



ji r ed t o meet the rcstr 



fh^ — When only one caregiver is requi 
staff/child r atio, the o p e r ato r shall make available to p arents 
the name, add r ess and p hone numbe r of an adult who is 
nearby and available fo r eme r gency r elief. 

(c^ — Children shall b e adequately su p e r vised a t all times. 
All child r en who are not aslee p o r r esting shall b e visually 
su per vis e d. — Childr e n may sleep or rest in anothe r r oom so 
long as a caregive r can h e ar them and r espond immediately. 

Authority G.S. 110-86(3); 110-91(7); 143B-168.3. 

.2608 AGE APPROPRIATE ACTIVITIES AND 
EQUIPMENT 

fa) — Each large hom e shall have a w r itten sch e dul e p ost e d 
for easy r ef er ence by p arents and car e giv er s. 

tb) The sch e dule shall show blocks of time usually 

assigned to typ e s of activities and shall indicate a balance 
between p e r iods of active play and p e r iods of quiet p lay o r 



G r ou p Size 

+5 
The ac t ivi t ies 



No. Staf f 

2 



and allot t ed t imes r eflec t ed in the 



sch e dul e shall be a ppr o pr iate fo r the ages of the child r en in 
care. 

(c) When child re n two ycai ' s old o r older are in care, the 
sch e dule — shaH — aho — r eflect daily o pp o r tunities — fo r both 
f r ee-choice and earcgiver-di r ected activi t ies. 

(tt) — Each home pr oviding car e to child r en ag e d two y e ars 
and olde r shall have equi p men t and mate r ials available on a 
daily basis. The equipment and ma t erials shall be a pp rop r iate 
fo r the age and size of the child r en in care. 

(e) — Home-mad e e qui p ment and mate r ials may be used if 
they are safe and functional. 

(f) — Each large hom e shall have i te ms fo r each of the 
following ty p es of activities : art and othe r c r eative play 
mate r ials: childr e n's books; mani p ula t ive toys; and d r amatic 
p lay mate r ials. The home shall have materials and equi p ment 
in sufficien t quantity to allow at least th r ee children to choose 
the same ty p e of activity. 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1133 



PROPOSED RULES 



tj") Tht — hom e — shttH — make equipment and ma t e r ials 

available fo r at least three of the ac t ivities d e signated m 
Paragra p h (f) of t his Rule each day. — A va r iety of t oys and 
mat e rials in sufficien t quan t ity to all o w at least th r ee r elated 
activities t o occu r at the same time shall be easily accessible 
lu the children. 

ijr^ — Age appropriate equi p ment and materials shall be 
provided for a vaiic t y of outdoor ac t ivities which allow fo r 
vigo r ous play and large muscle develo p men t . — Each child 
shall have the o p portunity fo r outd o o r play each day tha t 
weatlier conditions permit. The home shall pr ovide s p ace and 
time f or vigorous indoor activities when childr e n cannot play 
outdo o rs. 



for ac t iviti e s for infan t s and toddle r s 



(1) The requirements 
as s p eci f i e d in Rul e .051 1 of this Subcha p te r shall also ap p ly 
to large homes which p r ovide ca r e to child r en unde r two 
years of age. 

Authority G.S. 110-86(3): 1 10-91 (6). (12); 143B-168.3. 

.2609 OTHER CAREGIVING REQUIREMENTS 

ts) — Meals and snacks shall b e se r ved in accordance with 
th e requir e m e nts of Section .0 9 00 of this Subcha p te r exce p t 
that Rules .0 9 Ub) and .0 9 02(a) do not a pp ly. 

rtn — All food shall be p r ep ared and served in a sanitary 
mann er . — All food shall be s e rv e d on an individual sani t ar\ ' 
plate or other ap p ro p ria t e containe r . — Snack foods may be 
p laced on an individual napkin or p a p e r tow e l. No food shall 
be placed di r ectly on a counte r to p . table top o r othe r such 
surface. 

child shall be fed with the same 



accessible to caregiving staff. 

i-h Th e child's full name, dat e of bi rt h, alle r gies, if 

any. any ch r onic illn e ss the child may have, any 
medication th e child may be taking: and any special 
f e ai - s or behavio r characte r istics that could aff e ct 
the child's ca r e. 

t2i Th e names of individuals to whom the child may b e 

r eleased. 

t3j Eme r gency medical care information to include th e 

nam e , addr e ss and telephone numbe r of the p arent 
o r othe r p e r son to contact in an emergency; th e 
nam e — and — telephone — number — of — the — child's 
p hysician: and name of pr efer r ed hospital. 

f4^ A — statement — signed — by — the — child's — parent — or 

gua r dian autho r izing the home o p e r ato r to obtain 

e m er g e ncy m e dical attention fo r the child. 

(c) Each large home shall com p l e te a foiiii p r ovided by the 

section — which — desc r ibes — the — pr ocedu re s — for — obtaining 

eme r gency medical care fo r staff and child r en. The following 

information shall be included: 



t+) The name, add r ess and tele p hone number of a 

p hysician, othe r health pr of e ssional or local health 
ag e ncy — w+rich — rs — available — to — pr ovide — medical 
consultation. 

t^ The name and tele p hone numb er of the local 

eme r gency medical s er vic e . 



t^ 



-Bert 



signation ot a means of t r ans p o rt a t ion 
always available in the ev e nt of an eme r gency 



which is 



fc) — No mo r e than one cm 
utensil or d r ink f r om the same cu p o r glass. 

t* — The r equirements of Rule .1801 shall apply to lai - ge 
home^T 



(4^ The name. — add r ess, and p hone number of the 

p e rson who has ag r eed to be available to pr ovid e 

eme r gency r elief when the conditions stated in Rule 

.2607(c) e xist. 

(d) Each la r ge home shall have a working tele p hone on the 

pr emises which is always accessible to caregiving staff. 



tri — Dia p e r s shall be chang e d when e v er they ar e soiled o r Telephone numbe r s fo r the fire departmen t , law enf or cement 
wctr offic e , e m er g e ncy m e dical s er ^ ' ic e . p oison control center and 

e m er gency r elief p e r son, when r equi r ed, shall be p osted near 
the tele p hone. 



(f) Child r en shall be toilet t r ained according to individual 



r eadiness. 

tgl — Each pre school-age child shall be giv e n t ime and a 
p lace — to — rest — or — nap — comfortably — each — isvr 
pr esehool-age child shall hav e an individual bed. c r ib, cot o r 
two-inch mat with clean lin e ns. 



tel — Administ r ation of medications shall be in acco r dance 



Each with th e pr ovisions of Rule .0803. 

(f) An incident rep ort shall be com p leted each t ime a child 
r eceives medical t r eatment by a p hysician, nu r s e , p hysician's 



thi — A comfortable p lace with clean linens shall be made assistant, nu r se pr actitione r , community clinic, o r local health 
available to each school-aged child who wants to est o r who de p a r tment, a^ a r esult of an incident occurring while the 
TS-tttr 



Authont}' G.S. 1 10-91 (1). (2). (10): 143B-168.3. 

.2610 HEALTH AND EMERGENCY CARE 
REQLTRE.MENTS 

(ct^ — The large home shall have on file medical statements 
and r eco r ds of immunizations fo r each child in acco r dance 
with the pr ovisions of G.S. 1 10- 9 1(1). 

tir) — The home shall have the following information in 
w r it t en — form — fo r each child — in care. — including d r o p -in. 
p a r t-time and p art-day child r en. The infomiaiion shall be on 
file f r om the fi r st day the child att e nds and shall be easily 



child is at the large home. This inciden t re p ort shall include, 
at a minimum : child's nam e , dat e and tim e of incident, p ar t 
of body injured, ty p e of inju r y, nam e s of adult witness e s t o 



:u rr ed. 



inciden t , d e sc r i p tion of how and whe r e inciden t occi 
p iece of equipment in\ ' olvcd (if an\ ' ). t re at me nt re c e iv e d and 



shall be 



st ep s taken to pre\ ' ent r eoccur r enc e . — I his report 
signed by the p e r son com p leting it and by th e p ar e nt, and 
maintained in the child's fil e . — .^ co p y of th e incid e nt rep ort 
shall be mailed to th e Division within sev e n calendar days 
aft er tr e atm e nt. 

tpi — An incident log shall be com p leted any time an i 
incident r e p ort is com p leted. — This log shall b e cumulative I 
and maintained in a se p arate file and shall b e available for 



1134 



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January 2, 1998 



12:13 



PROPOSED RULES 



It. view by a representative of the Division. This log shall be 
L u uipleted on a form provided by the Division. 

Authoritx G.S. 110-86(3): 110-91(1); 143B-168.3. 



being t r ans p o r ted, 
staff /child r atio. 



the d r ive r shall not be coun t ed in the 



Authority G.S. 110-86(3): 110-91(13). 



.2611 PHYSICAL FACILITY AND SPACE 
REQUIREMENTS 

(a) Each large home shall com p ly with the Noith Ca r olina 
Building Code — requirements — for — small — g r ou p day ca r e 
facili t ies cai - ing for 6-15 children p u r suant to G.S. 110- 9 1(4) 
aiid Rule . 1303 of this Subcha pt e r . 

(b) — Each lai ' gc home shall be inspec t ed prior to the 
issuance of the initial license and at l e ast annually the r eafte r 
by a local fi r e safe t y official for compliance wi t h fire safety 
measu r es. 

(c) Each large home shall be ins p ected prio r to issuance of 
t he initial license and at least annually the r eafte r by a 
sanitarian — for — compliance — with — appropria t e — sanitation 
r e quirements as codified in Section .1200. 

(d) The home shall have at least two r emotely locat e d exits 
directly to the outside. 

fe) — Eiicdiius and othe r wea p ons on the pr emises shall be 
secured so that they are inacc e ssible to t he child r en. 

if) — Each larg e home shall have a t least 25 square fee t of 
indoo r space for e ach child fo r which the hom e is licensed. 
The indoor space shall b e measured by a r e pr esenta t ive of the 
section and shall include only those areas of the home which 
are r ou t inely made availabl e t o t he child r en. — The indoo r 
space shall not include close t s, bathrooms, s t orag e areas, 
u t ility r ooms, kitch e ns o r space occu p ied by fu r nitu r e o r 
equi p men t tha t is not used by th e child re n. — Th e dining area 
of a kitchen may be coun t ed if i t is r outinely used fo r 
child r en's activities in addition t o eating. 

(g) Each large home shall have an o u t doo r p lay area which 
provides at leas t 75 square feet of play area for each child 
pr esen t . — The outdoo r p lay area shall pr ovide an area tha t is 
shaded by a build i ng, awning, trees o r o the r methods. 

ijrr) — The outdoo r p lay area shall be f r ee of equi p ment, 
lit t e r , animals and othe r obj e cts which may be hazardous to 
child r en. 

(i) The requirements set fo r th in Rule .1403 for the use of 
swimming p ools on or off the pr emises shall a pp ly to larg e 
hom e s. 

(j) The requirem e n t s re lating to hazardous it e ms, mat er ials 
and equi p ment as s p ecified in Rules .0601(a), (b), (c) and 
■0602 of this Subcha p ter shall a pp ly to large homes. 

(k) The requirements re lating to safety as s pe cified in Rul e 
.0604 of this Subcha p te r shall a pp ly t o lai ' gc homes. 

Authority G.S. 110-86(3): 110-91 (3), (4). (5). (6): 143B-168.3. 

.2612 TRANSPORTATION REQUIREMENTS 

(a) — The requi r ements set fo r th in Rule .1717(a)(4) for 
t r ans p onation of child r en in child day care homes shall a pp ly 
t o large homes. 

(b) In addition, the staff/child r a t ios in Rule .2607 of this 
Section shall be maintained. — If child re n under age two are 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Department of Health and Human Services - 
Division of Vocational Rehabilitation intends to amend rules 
cited as 10 NCAC 20C .0201 - .0203, .0601, .0603, .0604 
and .0606. Notice of Rule-making Proceedings was 
published in the Register on October 15, 1997. 

Proposed Effective Date: July 1, 1998 

A Public Hearing will be conducted at 6:00p.m. on January 
20, 1998 at the Main Conference Room, Division of 
Rehabilitation Services, 805 Ruggles Drive, Dorothea Dix 
Campus, Raleigh, NC. 

Reason for Proposed Action: 10 NCAC 20C .0201 and 
.0202 are being amended to correct references to federal 
regulations and to make content consistent with federal 
regulations. 10 NCAC 20C .0203, .0601, .0603, .0604 and 
.0606 are being amended to require that the Division 
determine each client's priority category arui notify the 
individual of the category only when the Division implements 
an order of selection for services. This change will make the 
rules consistent with the final Federal regulation regarding 
order of selection for services issued February 11, 1997. The 
current N. C. rules require the determination and notification 
regarding an individual 's priority category when eligibility is 
determined. However, individuals already receiving services 
when an Order of Selection for Services is implemented will 
not be affected by the Order of Selection. Their services will 
continue. Therefore, determination of priority category and 
notification of the individual of that determination will affect 
only those applying for services and those whose services 
have not been planned under an Individualized Written 
Rehabilitation Program. 

Comment Procedures: Comments may be presented orally 
or in writing at the hearing. Oral statements may be limited 
at the discretion of the hearing officer. Written comments 
may also be submitted to Jackie Stalnaker. Division of 
Vocational Rehabilitation Services, P. O. Box 26053, Raleigh, 
NC 27611. To obtain additional information or indicate need 
for alternative communication format contact Ms. Stalnaker 
in writing or by phone (919) 733-3364 or TDD (919) 733- 
5924. In addition, a fiscal note is available upon written 
request from the same address. The deadline for receiving 
written comments is February 6, 1998. 

Fiscal Note: Tfiese Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1135 



PROPOSED RULES 



dollars ($5,000,000) in a 12-monlh period. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

SUBCHAPTER 20C - PROGRAM RULES 

SECTION .0200 - ELIGIBILITY 

.0201 ELIGIBILITY AND INELIGIBILITY 

(a) Eligibility for vocational rehabilitation services is 
based only upon the criteria specified in 34 C.F.R 361.31(b). 
361 .42. A preliminary assessment diagnostic study that 
meets the requirements of 34 C.F.R. 3 6 1.32 361.42 shall be 
used in order to determine whether an individual is eligible 
for vocational rehabilitation services or whether an extended 
e\aluation is necessary to make such a determination. The 
Division does not make interim determinations of eligibility 
as permitted by 34 C.F.R. 361. 3 Uc). 

(b) If an extended evaluation is necessary it will meet the 
requirements of 34 C.F.R. 361.34 361.42 . 

(c) Ce r tification — of Determinations of eligibility, 
c c rtitlcation — for ineligibilitv. or the need for extended 
evaluation to determine vocational rehabilitation potential, 
and ce r tifica t ion of ineligibility shall meet the requirements 
of 34 C.F.R. 361.35 361.42 . The vocational rehabilitation 
counselor shall make the appropriate ce r tification 
determination and document it in writing and include it in the 
individual's casefolder. 

(d) The Code of Federal Regulations adopted by reference 
in this Rule shall automatically include any later amendments 
thereto as allowed bv G.S. 150D-14(c). 150B-21.6. 



utilize any colla t e r al existing data and information available 
from the cooperating agencies to assure quick and equitable 
handling of referrals. 

Authority G.S. 143-545A; 143-546.4; 34 C.F.R. 361.22; 34 
C.F.R. 361.23; 34 C.F.R. 361.37; 34 C.F.R. 361.41. 

.0203 APPLICANT NOTIHCATION 

ttrt The Division shall provide written notification to all 
applicants for services at the time of application of eith er : 

Hi t h e existing order of selection as s e t out in Section 

.0000 of this Subcha p ter, or 

that an order of selection as set out in Section .0600 

of this Subchapter will be implemented if or when 

it is determined the Division has insufficient 

resources to serve all applicants who are determined 

eliaible. 



t^ 



tbi — The Division shall determine each client's p riority 
categon, ' at the time the individual is determined eligibl e fo r 
s er vic e s. — The client shall be p laced in the highest catcgoiy 
(beginning with Categon - On e ) fo r which he/she qualifies. 

tt") — In es t ablishing func t ional limitations as p an of the 
pr iority ca t ego r y deicimination as set ou t in Rule .0603 of 
this Subcha p ter, Division s t aff shall r eview all functional 
ca p acities that — may — p ose pr obl e ms — in th e — r ehabilitation 
p rog r am — and — em p loym e nt — outcomes — wrth — the — eligible 
individual in o r de r to identify - functional limitations related to 
th e person's disabili t y(ies). 

tdl — The Division shall notify ' e ach eligible individual of 
his/he r pr iori t y classification in w r iting at t he same time the 
no t ifica t ion of e ligibility is pr ovided.. 

t«i — The r eco r d of se r vices shall con t ain documentation of 



Authority G.S. 
361.42. 



.0202 



143-545A: 143-546A; 150B-21.6; 34 C.F.R. the r ational e fo r the client's p r iority catego r y assignm e n t . 



PROCESSE^JG REFERRALS AND 
APPLICANTS 

(a) The Division shall maintain cooperative agreements 
with other public agencies and shall establish and maintain 
information and referral programs as s p ecified in the Th r ee- 
Yea r Sta te Plan fo r Voca t ional Rehabilitation Se r vices unde r 
Titl e I of the R e habili t ation Act of 1 9 73, as amended, 
coverin g Fiscal Y e ars 1 9 8 9 , 1 99 0, and 1 99 1. required by 34 
C.F.R. 361.37. This ado p tion by re f ere nce is mad e unde r 
G.S. 150D-14(c). 

(b) Each rehabilitation counselor is assigned to a local 
office or vocational rehabilitation facility within a particular 
geographic area. Referrals may be made to the individual 
counselor, to the local community office, to a vocational 
rehabilitation facility, or to the state office of the Division. 
Information regarding referrals shall be forwarded to the 
appropriate counselor for processing. The counselor shall 
process the information regarding referrals as promptly as 
possible. 

(c) The counselor shall contact all individuals referred and 
make a pr eliminan ' determination of eligibility, ineligibility, 
or the need for extended evaluation. The Division shall 



tf) The — Division — shaH — chang e — a — client's — pr io r ity 

classification immediately if th ere ar e chang e s in the client's 
circumstances that warrant a change. — The Division shall 
notifv — the client — in writing of any — change in pr iority 
classification. 

Authority G.S. 143-545A; 143-546A; 34 C.F.R. 361.36; P.L. 
102-569. s. 101(a)(5)(A). 

SECTION .0600 - ORDER OF SELECTION FOR 
SERVICES 

.0601 APPLICABILITY OF POLICY 

The rules in this Section specify the order of selection for 
ser\ices that shall be followed by the Division in its general 
program when it does not have the financial or staff resources 
to serve all eligible individuals who apply for services. The 
rules do not apply to the Independent Living Program. The 
rules do not apph' if an order of selection for services has not 
been implemented by the Division Director. 



Authority G.S. 143-545A; 143-546A; 
101(a)(5)(A); 34 C.F.R. 361.36. 



P.L. 102-569. s. 



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PROPOSED RULES 



.0603 PRIORITY CATEGORIES 

(a) The Division shall determine each client's priority 
category at the time the individual is determined eligible for 
services. The client shall be placed in the highest category 
rbeginning with Category One) for which he/she qualifies. 

Cb) The Division shall notify each eligible individual of 
his/her priority classification in writing at the same time the 
notification of eligibility is provided. 

(c)tfd The priority categories for the order of selection for 
services for eligible individuals are as follows: 

(1) Category One. Individuals who have the most 
severe disabilities; 

(2) Category Two. Individuals with severe disabilities; 

(3) Category Three. Individuals with non-severe and 
permanent disability who will need multiple vocational 
rehabilitation services to attain a suitable employment 
outcome; and 

(4) Category Four. Any eligible individual who does 
not qualify for placement in a higher priority category. 

£d}tW The Division shall follow the provisions of P.L. 
102-569, Section 101(a)(13)(B) which is incorporated by 
reference regarding public safety officers when applicable in 
its order of selection. This incorporation by reference shall 
automatically include any later amendments to the cited 
section of the public law as allowed by G.S. 150B-21.6. A 
copy of the cited section of the public law may be obtained at 
no cost from the Division. 

(c) — An individual's pr iori t y ca t egory is det e rmined when 
eligibility is determined as outlined in Rule .0203 of this 
Subchap t er. 

(e) The Division shall change a client's priority 
classification immediately if there are changes in tlie client's 
circumstances that warrant a change. The Division shall 
notify the client in writing of any change in priority 
classification. 

Authority G.S. 143-545A; 143-546A; P.L. 102-569, s. 
101(a)(5)(A); 34 C.F.R. 361.36. 

.0604 PROCEDURES 

(a) Eligible individuals who are already receiving services 
under an Individualized Written Rehabilitation Program 
(IWRP) at the time the order of selection is implemented shall 
not be subject to the order of selection process. Their 
rehabilitation programs will continue until their records of 
service are closed. 

(b) In establishing functional limitations as part of the 
priority category determination as set out in Rule .0603 of 
this Section. Division staff shall review all functional 
capacities that may pose problems in the rehabilitation 
program and employment outcomes with the eligible 
individual in order to identify functional limitations related to 
the person's disability(ies). 

(c)flr» The Division shall serve individuals in Priority 
Category One first and individuals in the other priority 
categories in descending order from Priority Category Two 
down through Priority Category fnvc Four according to the 



availability of resources. 

(d)(c) Eligible individuals for whom rehabilitation services 
have not been plaimed under an Individualized Written 
Rehabilitation Program prior to the implementation of the 
order of selection and whose classification is below the 
categories approved for service shall be placed in a "waiting" 
status. They shall remain in the "waiting" status until their 
priority category is opened for services. 

(e)W When the order of selection is implemented, all 
individuals whose classification will mean they will be placed 
in a "waiting" status shall be notified in writing of their 
status. When services are made available to any category in 
which individuals have been in a "waiting" status, the 
Division shall notify all persons in that priority category that 
their rehabilitation program can be developed. 

(f)fc> Individuals determined eligible after the order of 
selection for service is implemented shall receive services if 
they are classified in the categories being served or shall be 
placed in a "waiting" status if their classification places them 
in a category not currently being served. 

Authority G.S. 143-545A; 143-546A; P.L;102-569, s. 
101(a)(5)(A); 34 C.F.R. 361.36. 

.0606 CASE FINDING AND INFORMATION AND 
REFERRAL PROGRAMS 

£a} Case finding efforts shall not be modified because of an 
order of selection. The Division has a continuing 
responsibility to make the public and referral sources aware 
of the services it has to offer eligible individuals with 
disabilities, especially those with severe disabilities. Referral 
sources shall be informed of an existing order of selection or 
of the potential of an order of selection being implemented, 
but they shall be reassured that this should not discourage 
referrals or applications. 

(b) The Division also may elect to establish an expanded 
information and referral program while operating under an 
order of selection for services. An expanded information and 
referral program may include counseling, guidance, and 
referral for job placement for those eligible individuals who 
are not in tlie priority categories to receive services under the 
State's order of selection, but the program shall meet the 
requirements of 34 C.F.R. 361.37 (c). 

Authority G.S. 143-545A; 143-546A; P.L 102-569. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Wildlife Resources Commission 
intends to amend rules cited as 15A NCAC lOH .0802, .0810. 
Notice of Rule-making Proceedings was published in the 
Register on September 15, 1997. 

Proposed Effective Date: July 1. 1998 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1137 



PROPOSED RULES 



A Public Hearing will be conducted at 10:00 a.m. on 
January- 21, 1998 at the Archdale Building, Room 332, 512 
N. Salisbury St., Raleigh, NC 27604. 

Reason for Proposed Action: Set /amend falconry 
regulations necessary to manage and preserve the resource. 

Comment Procedures: Interested persons may present their 
views either oralh or in writing at the hearing. In addition, 
the record of hearing will be open for receipt of written 
comments from January 2, 1998 to February 2. 1998. Such 
written comments must be delivered or mailed to the NC 
Wildlife Resources Commission, 512 N. Salisbury St., 
Raleigh, NC 27604-1188. 

Fiscal Note: Tliese Rules do not affect the expenditures or 
revenues of state or local government finds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 10 - WILDLIFE RESOURCES AND WATER 
SAFETY 

SUBCHAPTER lOH - REGULATED ACTIVITIES 



falconry license, and then only in accordance with the 
following instructions: 

(1) Young birds not capable of flight (eyasses) may not 
be taken without a special permit issued by the 
commission. These permits will be issued only to 
persons holding general or master class falconry 
permits and are valid during the period May 1 
through June 30. No more than two eyasses may 
be taken by the same permittee during this period. 

(2) First year (passage) birds may be taken only during 
the period September 4 through December 31, 
except that marked raptors may be retrapped at any 
time. 

(3) Only American kestrals (Falco sparverius) and 
great homed owls (Bubo Virginianus) may be taken 
when over one year old, except that any raptor 
other than an endangered or threatened species 
taken under a depredation or other special purpose 
permit issued by the U.S. Fish and Wildlife Service 
may be used for falconry by general and master 
class falconers. 

Authority G.S. 113-134; 11 3-270. 3 (b)(5); 50 C.F.R. 21.29. 



SECTION .0800 - FALCONRY 

.0802 PERMIT AND LICENSE REQUIREMENTS 

(a) No person shall take a raptor in this state for falconry 
purposes without having first obtained: 



(1) 
£2) 



moi 



a resident falconry permit issued by this state; 
or. a General or Master Class falconry permit as 
defined in Rule .0801 of this Section from another 
state that issues non-resident falconry permits or 
licenses: 

a North Carolina resident or non-resident falconry 
license as required by G.S. 113-270. 3(b)(5). 
(b) No person shall possess, transport, or import a raptor 
for falconry purposes or practice falconry in this state without 
having first obtained and having in possession: 

(1) a falconry permit as defined in Rule .0801 of this 
Section from this state or another state that issues 
non-resident falconry permits or licenses. 

(2) a North Carolina resident or non-resident falconry 
license as required by G.S. 1 13-270. 3(b)(5), 

(3) any other general purpose or special purpose 
license required by the applicable laws of this state. 

Authority G.S. 113-134; 1 13-270. 3(b)(5); 50 C.F.R. 21.28; 
50 C.F.R. 21.29. 

.0810 TAKING RAPTORS 

No raptor shall be taken from the wild in this state except 
by a person holding a currently valid r esiden t falconry permit 
as defined in Rule .0801 ot tins Section from this state or 
another slate that issues non-resident falconry permits or 
licenses and a currently valid resident or non-resident 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 8 BOARD OF CERTinED 
PUBLIC ACCOUNTANT EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina State Board of CPA Examiners 
intends to amend rules cited as 21 NCAC 8A .0301; 8F 
.0103, .0105, .0302, .0304. .0401; 8G .0404, .0406; 8H 
.0001; 81 .0004. .0005; 8J .0001, .0005, .0006, .0008, 
.0010; 8K .0301; 8M .0101, .0102. .0201. .0204. Notice of 
Rule-making Proceedings was published in the Register on 
October 15. 1997. 

Proposed Effective Date: August I. 1998 

A Public Hearing will be conducted at 10:00 a.m. on 
January 26, 1998 at the NC State Board of CPA Examiners, 
1101 Oberlin Rd, Suite 104, Raleigh, NC 27605. 

Reason for Proposed Action: To clarify application and 
conditioning requirements for CPA exam candidates. To 
clarify CPA certification requirements, continuing 
professional education (CPE), and certificate status. To 
clarify filing requirements for firms and registered limited 
liability partnerships. 

Comment Procedures: Any person interested in these rules 
may submit comments by mailing the comments to Robert N. 
Brooks. Executive Director, NC State Board of CPA 
Examiners, PO Box 12827. Raleigh. NC 27605. 



1138 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



Fiscal Note: 772^5^ Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER 8A - DEPARTMENTAL RULES 

SECTION .0300 - DEFINITIONS 

.0301 DEFINITIONS 

(a) The definitions set out in G.S. 93-l(a) shall apply 
when those defined terms are used in 21 NCAC 8. 

(b) In addition to the definitions set out in G.S. 93-I(a), 
the following definitions and other definitions in this Section 
apply when these terms are used in 21 NCAC 8: 

(1) "Active," when used to refer to the status of a 
person, describes a person who possesses a North 
Carolina certificate of qualification and who has not 
otherwise been granted "Retired," "Inactive," or 
"Conditional" status; 

(2) "AlCPA" means the American Institute of Certified 
Public Accountants; 

(3) "Applicant" means a person who has applied to 
take the CPA examination; 

(4) "Attest service" means: 

(A) any audit, 

(B) any review of a financial statement, 

(C) any compilation of a financial statement 
when the CPA expects, or reasonably might 
expect, that a third party will use the 
compilation and the CPA does not disclose a 
lack of independence, and 

(D) any examination of prospective financial 
information; 

(5) "Audit" means an examination of financial 
statements of a person by a CPA, conducted in 
accordance with generally accepted auditing 
standards, to determine whether, in the CPA's 
opinion, the statements conform with generally 
accepted accounting principles or, if applicable, 
with another comprehensive basis of accounting; 

(6) "Board" means the North Carolina State Board of 
Certified Public Accountant Examiners; 

(7) "Calendar year" means the 12 months begiiming 
January 1 and ending December 3 1 ; 

(8) "Candidate" means a person whose application to 
take the CPA examination has been accepted and 
who may sit for the CPA examination; 

(9) "Client" means one who orally or in writing agrees 
with a person or firm holding out pursuant to 21 
NCAC 8A .0308 to receive any services included 
in 21 NCAC 8A .0307; 

(10) "Commission" means compensation, except a 
referral fee, for recommending or referring any 
product or service to be supplied by another 
person; 

(11) "Compilation of a financial statement" means 



presenting in the form of a financial statement 
information that is the representation of any other 
person without the CPA's undertaking to express 
any assurance on the statement; 

(12) "Conditional," when used to refer to the status of a 
person, describes a person who holds a North 
Carolina certificate of qualification under certain 
conditions as imposed by the Board, such as 
additional requirements for failure to complete the 
required CPE hours in a calendar year; 

(13) "Contingent fee" means a fee established for the 
performance of any service pursuant to an 
arrangement in which no fee will be charged unless 
a specified finding or result is attained, or in which 
the amount of the fee is otherwise dependent upon 
the finding or result of such service; 

(14) "CP.\" means certified public accountant; 

(15) "CPE" means continuing professional education; 

(16) "Disciplinary action" means revocation or 
suspension of, or refusal to grant, membership, or 
the imposition of a reprimand, probation, 
constructive comment, or any other penalty or 
condition; 

(17) "Disclosure" means a written statement of the 
service to be rendered with the contingent fee to be 
charged and which is dated and signed by the 
client; 

(18) "Examination of prospective financial information" 
means an evaluation by a CPA of: 

(A) a forecast or projection, 

(B) the support underlying the assumptions in the 
forecast or projection, 

(C) whether the presentation of the forecast or 
projection is in conformity with AlCPA 
presentation guidelines, and 

(D) whether the assumptions in the forecast or 
projection provide a reasonable basis for the 
forecast or projection; 

(19) "FASB" means the Financial Accounting Standards 
Board; 

(20) "Firm" means an individual proprietor, a 
partnership, a professional corporation, a 
professional limited liability company, or a 
registered limited liability partnership; 

(21) "Forecast" means prospective financial statements 
that present, to the best of the responsible party's 
knowledge and belief, an entity's expected financial 
position, results of operations, and changes in 
financial position or cash flows that are based on 
the responsible party's assumptions reflecting 
conditions it expects to exist and the course of 
action it expects to take; 

(22) "GASB" means the Governmental Accounting 
Standards Board; 

(23) "Inactive," when used to refer to the status of a 
person, describes one who has voluntarily 
su rr ende r ed a ce r tificat e of qualifica t ion requested 



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1139 



PROPOSED RULES 



inactive status and been approved by the Board and 
who does not use the title "certified public 
accountant" nor does he or she allow anyone to 
refer to him or her as a "cenified public 
accountant," and neither he or she nor anyone else 
refers to him or her in any representation as 
described in 21 NCAC 8 A .0308(b). .0308(b): 



Un r evoked inactiv ' c ccnificaies shall be ke p t by the 
Boa r d 



-of — status — of th e — foiivier 



macti 
until — change 
c e rtificate holde r: 

(24) "IRS" means the Internal Revenue Service: 

(25) "License year" means the 12 months beginning July 
1 and ending June 30: 

(26) "Member of a firm" means any CPA who has an 
ownership interest in a CPA firm including owners, 
partners and shareholders: 

(27) "NASBA" means the National Association of State 
Boards of Accountancy: 

(28) "NCACPA" means the North Carolina Association 
of Certified Public Accountants: 

(29) "North Carolina office" means any office 
physically located in Nonh Carolina; 

(30) "Participating firm" means a firm participating in 
the SQR program. It does not include firms 
exempt by reason of 21 NCAC 8M .0102(a) or 
deemed in compliance pursuant to 21 NCAC 8M 
.0104: 

(31) "Person" means any natural person, corporation, 
partnership, professional limited liability company, 
registered limited liability partnership, 
unincorporated association, or other entity; 

(32) "Projection" means prospective financial statements 
that present, to the best of the responsible party's 
knowledge and belief, given one or more 
hypothetical assumptions, an entity's expected 
financial position, results of operations, and 
changes in financial position or cash flows that are 
based on the responsible party's assumptions 
reflecting conditions it expects would exist and the 
course of action it expects would be taken given 
such hypothetical assumptions: 

(33) "Referral fee" means compensation for 
recommending or referring any service of a CPA to 
any person; 

(34) "Retired," when used to refer to the status of a 
person, describes one possessing a North Carolina 
certificate of qualification who does not r eceive any 
earned com p ensation fo r cu r ren t personal services 
in any job wha^soc^ ■ c^: verifies to the Board that the 
applicant either: 

(A) does not recehe or intend to receive in the 
future any earned compensation for current 
persona] senices in any job whatsoever and 
will not return to active status: or 

(B) does not perform anv personal services 
related to the field of accounting, how e v e r, 
tins Retired status does not preclude 



volunteer services for which the retired CPA 
receives no direct nor indirect compensation 
so long as the retired CPA does not sign any 
documents, related to such services, as a 
CPA: Limited exem p tions may be g r anted in 
th e disc r etion of the Board only — in the 
following — instances — when — the — applicant 
verifies no intent to r etu r n to active status 
and eith er: 

(A) the applicant p e r forms no pe r sonal se r vices 
re lated to the fi e ld of accounting, o r 

t&) the applicant is not pr oviding accounting 
services, is 70 years of ag e o r more, and 
ag r ees not to hold himself or herself out as a 
CPA or us e the title in comiection with any 
ty p e of se r vice pr ovided to the p ublic ; 

(35) "Revenue Department" means the North Carolina 
Department of Revenue; 

(36) "Review" means to perform an inquiry and 
analytical procedures that permit a CPA to 
determine whether there is a reasonable basis for 
expressing limited assurance that there are no 
material modifications that should be made to 
financial statements in order for them to be in 
conformity with generally accepted accounting 
principles or, if applicable, with another 
comprehensive basis of accounting; 

(37) "SQR Advisory Committee" means the State 
Quality Review Advisory Committee to the Board; 

(38) "SQR Program" means the State Quality Review 
Program of the North Carolina State Board of 
Certified Public Accountant Examinersi 

(39) "SQR Review team" means that team of CPAs 
which reviews a firm pursuant to the requirements 
of Subchapter 8M. A review team may be 
comprised of one or more members; 

(40) "SQR Review team captain" means that member of 
a review team who is responsible for the review 
and supervises the other members of the team; 

(41) "SQR Reviewer" means a member of a review team 
including the review team captain: 

(42) "Suspension" means a revocation for a specified 
period of time. A CPA may be reinstated after a 
specific period of time if the CPA has met all 
conditions imposed by the Board at the time of 
suspension; and 

(43) "Trade name" means a name used to designate a 
business enterprise. 

Authority G.S. 93-1; 93-12(8c). 

SUBCHAPTER 8F - REQUIREMENTS FOR 

CERTIFIED PUBLIC ACCOUNTANT 

EXAMINATION ANT) CERTIFICATE APPLICANTS 

SECTION .0100 - GENERAL PROVISIONS 



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.0103 FILING OF EXAMINATION APPLICATIONS 
AND FEES 

(a) All applications for CPA examinations most shall be 
filed with the Board, accompanied by the examination fee. 
The Board sets the fee for each examination at the amount 
that enables the Board to recover its costs in administering the 
examination. If a check or credit card authorization fails to 
clear the bank, the application shall be deemed incomplete 
and returned. 

(b) Completed initial applications shall be postmarked with 
proper postage not later than the last day of January for the 
spring examination and not later than the last day of July for 
the fall examination. Completed re-exam applications shall 
be postmarked with proper postage not later than the last day 
of February for the spring examination and not later than the 
last day of August for the fall examination. If one of those 
dates falls on a weekend or federal holiday, the application 
mus t shall be postmarked or received in the Board office on 
the next business day. Only a U.S. Postal Service 
cancellation wrii shall be considered as the postmark. If an 
application is sent to the Board office via a private delivery 
service, the date the package is received by the delivery 
service shall be considered as the postmark. 

(c) The initial application filed to take the examination 
must shall include supporting documentation demonstrating 
that all legal requirements have been met, such as: 

(1) minimum legal age; 

(2) education; 

(3) experience, if required in order to qualify for the 
examination; and 

(4) good moral character. 

(5) Any person bom outside the United States mmt 
shall furnish to the Board office evidence of 
citizenship; evidence of resident alien status; or 

(A) other bona fide evidence that the applicant is 
legally allowed to remain in the United 
States for the purposes of becoming a U.S. 
citizen, or 

(B) a notarized affidavit of intention to become a 
U.S. citizen, or 

(C) evidence that the applicant is a citizen of a 
foreign jurisdiction which extends to citizens 
of this state like or similar privileges to be 
examined. 

(d) Official transcripts (originals - not photocopies) signed 
by the college registrar and bearing the college seal are 
required to prove education and degree requirements. A 
letter from the college registrar of the school may be filed as 
documentation that the applicant has met the graduation 
requirements if the degree has not been awarded and posted to 
the transcript. However, no examination grades shall be 
released until an official transcript is filed confirming the 
information supplied in the college registrar's letter. All 
applicants submitting transcripts from foreign schools for 
consideration of degree and of meeting accountancy course 
requirements most shall have had the transcript(s) evaluated 
by Foreign Academic Credential Service, Inc. (FACS) or a 



comparable qualified educational evaluation service. 
Applicants are responsible for determining that their 
transcripts contain all information required by these Rules. 

(e) If experience is required to qualify for examination, 
affidavits mus t shall be prepared and signed by employers on 
forms supplied by the Board. 

(f) In order to document good moral character as required 
by Subparagraph (c)(4) of this Rule, three certificates of good 
moral character signed by persons not related by blood or 
marriage to the applicant shall accompany the application. 

(g) All applications for re -examination most shall be 
accompanied by three new certificates of moral character. No 
additional statements and affidavits regarding experience and 
education shall be required for applications for 
re-examination. 

(h) An applicant shall include as part of any application for 
the CPA examination a statement of explanation and a 
certified copy of court records if the applicant has been 
convicted or found guilty of or pleaded nolo contendere to 
any felony, or to any other criminal offense of which an 
essential element is: 

(1) dishonesty, deceit, or fraud; 

(2) violation of a federal or state tax law; or 

(3) commission of any act or conduct discreditable to 
the accountancy profession in violation of the Rules 
of Professional Ethics and Conduct for Certified 
Public Accountants, unless such information has 
been furnished in a previous application filed with 
the Board. 

(i) If an applicant has been denied any license by any state 
or federal agency, the applicant shall include as part of the 
application for the CPA examination a statement explaining 
such denial. An applicant shall include a statement of 
explanation and a certified copy of applicable license records 
if the applicant has been registered with or licensed by a state 
or federal agency and has been disciplined by that agency. 

(j) Two recent identical photographs mus t shall accompany 
the application for the CPA examination. These photographs 
shall have been taken within the last six months. The 
photographs shall be of the applicant alone, 2x2 inches in 
size, with an image size from the bottom of the chin to the 
top of the head, including hair, of between 1 and 1-3/8 
inches. Photographs mus t shall be clear, front view, full 
face, taken in normal street attire without a hat or dark 
glasses, and printed on thin paper with a plain light 
background. They imtst shall be capable of withstanding a 
mounting temperature of 225 degrees Fahrenheit (107 degrees 
Celsius). They may be in black and white or in color. 
Snapshots, most vending-machine prints, and magazine or 
full-length photographs are unacceptable. Photographs 
retouched so that the applicant's appearance is changed are 
unacceptable. Applicants shall write their names on the back 
of their photos. 

(k) If an applicant's name has legally changed and is 
different from the name on any transcript or other document 
supplied to the Board, the applicant shall furnish copies of the 
documents legally authorizing the name change. 



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1141 



PROPOSED RULES 



Authorin G.S. 93-1213): 93-12(4): 93-12(5). 

.0105 CONDITIONING REQUIREMENTS 

(a) Passing Grades. A candidate shall be required to pass 
all sections of the examination with a grade of 75 or higher. 

(b) Conditional Credit. If a candidate does not pass all of 
the sections in one sitting, conditional credit can may be 
retained for passed sections subject to the following: 

(1) No conditional credit can may be retained until the 
candidate has first passed at least two sections in 
one sitting; 

(2) To receive conditional credit for any section the 
candidate must sit for and make a grade of at least 
50 on all unpassed sections; and 

(3) The conditional credit is good through the six 
succeedmg times the exam is offered by the Board. 

(c) Military Service. A candidate who was or is in active 
military service after receiving conditional credit shall have 
only those exams for which that candidate applied and was 
approved during active military' service counted as succeeding 
examinations. 

tth S e ction Equivalency. — Fo r p ur p oses of conditional 
cr e dit, the following p re- and p ost-May 1 99 4 exam sections 
are equi\ ' alen t : 

ti-y accounting p r actic e e quals — accounting and 

re po r ting; 
t2^ accounting th e o r \ ' equals financial accounting and 

r e p o r ting : 
t^ audi t ing e quals auditing; and 

t+) business law equals business law and pr ofessional 
re s p onsibiliti e s. 
fr)(d) A candidate who has conditional credit prior to 
January 1, 1997, may continue to apply to sit for the 
examination as long as the conditional credit is valid. A 
candidate who no longer has valid conditional credit after 
January 1, 1997, wrtt shall be required to meet all education 
requirements in effect at the time of their subsequent 
application. 

Authonn G.S. 93-12(3): 93-12(5). 

SECTION .0300 - EDUCATIONAL REQUIREMENTS 
FOR EXAMINATION 

.0302 EDUCATION AiNT) WORK EXPERIENCE 
REQUIRED PRIOR TO CPA EXAM 

(a) Under G.S. 93-12(5) there axe th r e e two ways an 
applicant for the CPA examination can demonstrate the 
possession of sufficient education to become a CPA: 

(1) the possession of a bachelor's degree in any 
subject, from a regionally accredited college or 
university, that either includes or is supplemented 
by a concentration in accounting as defined in 21 
NCAC 8 A .0309: and 
t^ two y e ars of college at a r egionally accredited 
college o r uni\ ' c r sity p lus two yea r s of ex p e r ience 
in th e public p r actice of accountancy under the 



dir e ct su p e r vision of a CPA; and 
OliZ} compliance with the requirements set fonh in 21 
NCAC 8F .0304, which provides for special 
examinations in lieu of formal education. 

(b) Applicants who intend to demonstrate their possession 
of sufficient education to become a CPA by showing that they 
possess eith e r a bachelor's degree o r two yeai - s of college 
mus t shall submit official transcripts with their application to 
take the CPA examination. Official transcripts shall show the 
grades the applicant received on courses completed and shall 
also show degrees awarded. An official transcript bears the 
seal of the school and the signature of the registrar or other 
appropriate official. 

(c) With regard to Paragraph (a)(1) of this Rule, the Board 
may approve an application to take the CPA examination 
prior to the receipt of a bachelor's degree, if: 

( 1 ) the concentration in accounting which wrtt shall be 
included in or supplement the bachelor's degree is 
already complete or is reasonably expected to be 
completed by the end of the school term within 
which the examination falls; and 

(2) an applicant reasonably expects to receive the 
bachelor's degree within 90 days after the last day 
of the examination. However, if the applicant fails 
to receive the degree within the specified time, the 
CPA examination grades shall not be released and 
if the applicant wishes to retake the examination, 
the applicant must shall reapply. 

t&t With r egard to Parag r a p h (a)(2 ) of this Rul e , th e 
completion of two yea r s in an acc r edi t ed college or unive r sity 
o r its equivalent means that th e applicant has succ e ssfully 
com p leted, o r r easonably ex p ects to compl e t e at the end of 
th e school term within which the examination falls, at least 60 
semeste r hou r s of cou r se wo r k, o r the e quivalent in quarter 
hou r s, in a school, college, o r unive r sity acc r edited by a 
re gional acc re diting association. — The 60 semeste r hours mus t 
includ e a conc e nt r ation in accoun t ing as defined i n 21 NCAC 



8A .0309. Ik 



lowevc r , if th e a pp licant fails to complete th e 
necessa r y semeste r hou r s by the end of th e school term witliiii 
which th e e xamination falls, the examination g r ad e s shall no t 
be — rel e ased — and — if th e — a pp licant — wishes — to — r etake — the 
examination, the a pp licant must re a pp ly. 

tcl With r egard to Parag r a p h (a)(2) of this Rule, the 
pr ovisions set fo r th in 21 NCAC SF .0401 r egarding work 
ex p erience apply to th e se two years of ex p e r ience. 

tft(d) With regard to Paragraph (a)(3) (a)(2) of this Rule, 
the applicant must shall complete the work experience that is 
required by all candidates for certification, and set forth in 21 
NCAC 8F .0401, prior to the date the applicant applies for 
the CPA examination. 

Authonn- G.S. 93-12(3): 93-12(5). 

.0304 WAIVER OF EDUCATION REQUIRED 
PRIOR TO EXAMINATION 

(a) The Board wrtt shall waive the education requirements 
specified in 21 NCAC 8F .0302(a)(1) and (2) upon receipt of 



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PROPOSED RULES 



proof acceptable to the Board that the applicant has scored: 

(1) in the 50th percentile rank or higher on each part of 
either the Graduate Record Examination or the 
Graduate Management Admission Test; and 

(2) in the 50th percentile rank or higher on the AICPA 
Level II Achievement Test. 

(b) The Board wttt shall waive the examination set forth in 
Paragraph (a) of this Rule upon proof acceptable to the Board 
that: 

(1) the applicant has emolled for an advanced degree at 
a regionally accredited school and, prior to filing 
an application with the Board, has satisfactorily 
completed ten semester hours, or the equivalent, of 
graduate courses, including six semester hours in 
graduate accounting courses; or 

(2) the applicant has completed 15 semester hours, or 
the equivalent, of undergraduate courses, including 
six semester hours, or the equivalent, in 
undergraduate accounting courses at a regionally 
accredited school if the applicant possesses a 
bachelor's degree supplemented by a concentration 
in accounting but either the bachelor's degree or the 
concentration in accounting is not from a regionally 
accredited school. 

Authority G.S. 93-12(5); 93-12(7). 

SECTION .0400 - EXPERIENCE 

.0401 WORK EXPERIENCE REQUIRED OF 

CANDIDATES FOR CPA CERTIFICATION 

(a) G.S. 93-12(5) (in the text surrounding the second set of 
a., b., c, and d.) sets forth work experience alternatives, one 
of which is required of candidates applying for CPA 
certification. In connection with those requirements, the 
following provisions apply: 

(1) The work experience most shall be acquired prior 
to the date a candidate applies for certification. 

(2) Two yea r s of ex p e r ience in the public practice of 
accountancy under the di r ec t su per vision of a CPA, 
which is acqui re d in o r der t o meet the education 
requiremen t pr io r to the a pp lication to take the 
CPA e xamination set forth in G.S. 9 3-12(5)(firs t 
c.) and 21 NCAC %V .0302(a)(2), shall not also 
c ount t owa r d th e ex p erience r equi r ement required 
of candidates fo r CPA certification se t fo r th in G.S. 
9 3-12(5) (in the text su rr ounding the second set of 
a., b., c, and d.). 

f9)£2} All experience which is required to be under the 
direct supervision of a CPA mtist shall be under the 
direct supervision of a CPA on active status. 

W(3) A candidate who applied for the CPA examination 
under the special examination exception set out in 
G.S. 93-12(5), and further described in 21 NCAC 
8r .0302(a)(3) and (0, 8F .03Q2(a)(2) and £d} shall 
meet the work experience requirement prior to 
applying to take the CPA examination. 



(b) The following provisions apply to all candidates 
seeking to meet the work experience requirement by working 
in the field of accounting. G.S. 93-12(5)(second a.) and 
(second c). 

(1) One year of work experience is 52 weeks of 
full-time employment. The candidate is employed 
full-time when the candidate is expected by the 
employer to work for the employer at least 35 30 
hours each week for an indefinite period or for a set 
period of at least one year. Any other work, 
including working on an "as-needed" or a 
temporary basis, is working part-time. 

(2) All weeks of actual full-time employment are added 
to all full-time equivalent weeks in order to 
calculate how much work experience a candidate 
has acquired. Dividing that number by 52 results 
in the years of work experience the candidate has 
acquired. 

(3) Full-time-equivalent weeks are determined by the 
number of actual part-time hours the candidate has 
worked. Actual part-time hours do not include 
hours paid for sick leave, vacation leave, attending 
continuing education courses or other time not 
spent directly performing accounting services. For 
each calendar week during which the candidate 
worked actual part-time hours of 30 35 hours or 
more, the candidate receives one 
full-time-equivalent week. The actual part-time 
hours worked in the remaining calendar weeks are 
added together and divided by 30. The resulting 
number is the additional number of 
full-time-equivalent weeks to which the candidate is 
entitled. 

(4) The candidate mus t shall submit experience 
affidavits on a form provided by the Board from all 
of the relevant employers; provided that when such 
experience was not acquired while employed with a 
CPA firm, the candidate most shall also submit 
details of the work experience and supervision on a 
form provided by the Board. Experience affidavits 
for part-time work must shall contain a record of 
the actual part-time hours the candidate has worked 
for each week of part-time employment. Both the 
experience affidavit and the form for additional 
detail most shall be certified by the employer's 
office supervisor or an owner of the firm who is a 
certificate holder. 

(c) 21 NCAC 8F .0409 applies to teaching experience 
acquired pursuant to G.S. 93-12(5)(second b.). 

Authority G.S. 93-12(3); 93-12(5). 

SUBCHAPTER 8G - CONTINUING PROFESSIONAL 
EDUCATION (CPE) 

SECTION .0400 - CPE REQUIREMENTS 



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PROPOSED RULES 



.0404 REQUIREMENTS FOR CPE CREDIT 

(a) A CPA wttt shall not be granted CPE credit for a 
course unless the course; 

(1) is in one of the six fields of study recognized by the 
Board and set forth in Paragraph (b) of this Rule; 

(2) is actually developed by an individual who has 
education and work experience in the subject matter 
of the course; and 

(3) uses instructional techniques and materials that are 
current and accurate. 

(b) The six fields of study recognized by the Board are 
based on the subject areas that are set forth in the AICPA 
National CPE Curriculum. The six fields are accounting and 
auditing, consulting services, management, personal 
development, specialized knowledge and applications, and 
taxation. 

(1) The accounting and auditing field of study includes 
accounting and financial reporting subjects, the 
body of knowledge dealing with recent 
pronouncements of authoritative accounting 
principles issued by the standard-setting bodies, 
and any other related subject generally classified 
within the accounting discipline. It also includes 
auditing subjects related to the examination of 
financial statements, operations systems, and 
programs; the review of internal and management 
controls; and the reporting on the results of audit 
findings, compilation, and review. 

(2) The consulting services field of study deals with all 
consulting services provided by professional 
accountants management, business, personal, and 
other. It includes management consulting services 
and personal financial plaiming services. This field 
also covers an organization's various systems, the 
services provided by consultant practitioners, and 
the engagement management techniques that are 
typically used. An organization's systems include 
those dealing with planning, organizing, and 
controlling any phase of individual financial 
activity and business activity. Services provided 
encompass those for management, such as 
designing, implementing, and evaluating operating 
systems for organizations, as well as business 
consulting services and personal financial planning. 

(3) The management field of study considers the 
management needs of individuals primarily in 
public practice, industry, and government. Some 
subjects concentrate on the practice management 
area of the public practitioner, such as 
organizational structures, marketing services, 
human resource management, and administrative 
practices. For individuals in industry, there are 
subjects dealing with the financial management of 
the organization, including information systems, 
budgeting, and asset management, as well as items 
covering management planning, buying and selling 
businesses, contracting for goods and services, and 



foreign operations. For CPAs in government, this 
curriculum embraces budgeting, cost analysis, 
human resource management, and financial 
management in state and local governmental 
entities. In general, the emphasis in this field is on 
the specific management needs of CPAs and not on 
general management skills. 

(4) The personal development field of study includes 
becoming a competent people manager, which 
covers such skills as communications, managing the 
group process, and dealing effectively with others 
in interviewing, counseling, and career planning. 
Public relations and professional ethics are also 
treated. 

(5) The specialized knowledge and applications field of 
study treats subjects related to specialized 
industries, such as not-for-profit organizations, 
health care, and oil and gas. An industry is defined 
as specialized if it has unusual; 

(A) forms of organization; 

(B) economic structure; 

(C) sources of financing; 

(D) statutory or regulatory requirements; 

(E) marketing or distribution; 

(F) terminology; or 

(G) technology; and 

(H) employs unique accounting principles and 
practices; 

(I) encounters unique tax problems; 

(J) requires unique consulting services; or 
(K) faces unique audit issues. 

(6) The taxation field of study includes subjects dealing 
with tax compliance and tax planning. Compliance 
covers tax return preparation and review and IRS 
examinations, ruling requests, and protests. Tax 
planning focuses on applying tax rules to 
prospective transactions and understanding the tax 
implications of unusual or complex transactions. 
Recognizing alternative tax treatments and advising 
the client on tax saving opportunities are also part 
of tax planning. 

(c) In addition to courses sponsored by approved sponsors, 
the following may qualify as acceptable types of continuing 
education programs, provided the programs comply with the 
requirements set forth in Paragraph (a) of this Rule: 

( 1 ) professional development programs of national and 
state accounting organizations; 

(2) technical sessions at meetings of national and state 
accounting organizations and their chapters; 

(3) courses taken at regionally accredited colleges and 
universities; 

(4) formal educational programs conducted within an 
association of accounting firms; and 

(5) formal correspondence courses. A CPA may claim 
credit for a course offered by a non-approved 
sponsor provided that the course meets the 
requirements of 21 NCAC 8G .0403(d), 8G .0404, 



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PROPOSED RULES 



and 21 NCAC 8G .0409. It is the responsibility of 
the CPA to maintain documentation proving that 
the course met these standards. 

(d) Notwithstanding Paragraph (a) of this Rule, CPE credit 
may be granted for teaching a CPE course or authoring a 
publication as long as the preparation to teach or write 
increased the CPA's professional competency and was in one 
of the six fields of study recognized by the Board and set 
forth in Paragraph (b) of this Rule. 

(e) CPE credit shall not be granted for a self-study course 
if the material that the CPA must study to take the 
examination is not designed for CPE purposes. This includes 
periodicals, guides, magazines, subscription services, books, 
reference manuals and supplements which contain an 
examination to test the comprehension of the material read. 

Authority G.S. 93-12(8b). 

.0406 COMPLIANCE WITH CPE REQUIREMENTS 

(a) All active CPAs mus t shall file with the Board a 
completed CPE reporting form by the July 1 renewal date of 
each year. 

(b) If a CPA fails to complete the CPE requirements prior 
to the end of the previous calendar year but the CPA has 
completed them by the July 1 r enewal date, June 30. the 
Board may, in its discretion: 

(1) change the CPA's status from active to conditional, 
and may impose any conditions that the Board 
considers appropriate in the circumstances, as a 
penalty for the first such failure within a five 
calendar year period; 

(2) place the CPA on conditional status again and 
require the payment of a civil penalty of one 
hundred dollars (SIOO.OO) for the second such 
failure within a five calendar year period; and 

(3) deny the renewal of the CPA's certificate for a 
period of not less than 30 days and until the CPA 
meets the reinstatement requirements set forth in 21 
NCAC 8J .0006 for the third such failure within a 
five calendar year period. 

Authority G.S. 93-1 2(8b); 93-12(9)(e). 

SUBCHAPTER 8H - RECIPROCITY 

.0001 RECIPROCAL CERTinCATES 

(a) Persons who meet the requirements of G.S. 93-12(6) 
may apply to the Board for a reciprocal certificate. 

(b) The fee for a reciprocal certificate shall be the 
maximum amount allowed by statute. 

(c) An applicant for a reciprocal certificate must shall meet 
all of the current requirements imposed on an applicant under 
G.S. 93-12(5) or the following requirements, which the 
Board considers to be substantially equivalent to those 
requirements: 

(1) The applicant has the unrestricted privilege to use 
the CPA title and to practice public accountancy in 



any state or territory of the United States, or the 
District of Columbia. 

(2) The applicant: 

(A) within ten years immediately preceding the 
filing date of the application, has had four 
years of experience in the field of accounting 
under the direct supervision of a CPA who 
held a valid license during the period of 
supervision in any state or territory of the 
United States or the District of Columbia; or 

(B) has ten years of experience in the field of 
accounting, or ten years of experience 
teaching accounting as defined and calculated 
in 21 NCAC 8F .0409, or any combination 
of such experience earned within the 12 
years immediately preceding the filing date 
of the application. 

(3) The applicant received a score of at least 75 on each 
part of the Uniform CPA Examination. 

(4) During the two years preceding the applicant's 
filing date for a reciprocal certificate, the applicant 
has completed 80 hours of CPE in courses meeting 
the requirements of 21 NCAC 8G .0401(a). 
However, applicants who received their initial CPA 
license within four years from the filing date of 
their application for a reciprocal certificate are 
exempt from this CPE requirement. 

(d) An applicant for change in stams status, reissuance, or 
reinstatement of a reciprocal certificate that was inactive, 
forfeited, or retired more than 10 years before the date of 
reapplication, mus t shall comply with all current requirements 
for a reciprocal certificate. 

Authority G.S. 93-12(6); 93- 12 (7a). 

SUBCHAPTER 81 - REVOCATION OF CERTinCATES 
AND OTHER DISCIPLINARY ACTION 

.0004 MODinCATION OF DISCIPLINE AND NEW 
CERTinCATE 

(a) A person or firm that has been disciplined by the Board 
may apply to the Board for modification of the discipline at 
any time after the effective date of the Board's decision 
imposing it; however, if any previous application has been 
made with respect to the same discipline, no additional 
application shall be considered before the lapse of one year 
following the Board's decision on that previous application. 
Provided, however, that an application to modify permanent 
revocation shall not be considered until after five years from 
the date of the original discipline, nor more often than three 
years after the Board's last decision on any prior application 
for modification. 

(b) The application for modification of discipline or for a 
new certificate shall be in writing, shall set out and, as 
appropriate, shall demonstrate good cause for the relief 
sought. The application for an individual shall be 
accompanied by at least three supporting recommendations. 



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1145 



PROPOSED RULES 



made under oath, from CPAs who have personal knowledge 
of the activities of the applicant since the discipline was 
imposed. The application for a firm shall be accompanied by 
at least three supporting recommendations, made under oath, 
for each partner, member, or shareholder, from CPAs who 
have personal knowledge of the activities of the panner, 
member, or shareholder, smce the discipline was imposed. 

(c) "Good cause" as used in Paragraph (b) of this Rule 
means that the applicant is completely rehabilitated with 
respect to the conduct which was the basis of the discipline. 
Evidence demonstrating such rehabilitation shall include 
evidence: 

(1) that such person has not engaged in any conduct 
during the discipline period which, if that person 
had been licensed or registered during such period, 
would have constituted the basis for discipline 
pursuant to G.S. 93-12(9); 

(2) that, with respect to any criminal conviction which 
constituted any part of the previous discipline, the 
person has completed the sentence imposed; and 

(3) that, with respect to a court order, restitution has 
been made to any aggrieved party. 

(d) In determining good cause, the Board may consider all 
the applicant's activities since the disci p linary — p enalty 
discipline was imposed, the offense for which the applicant 
was disciplined, the applicants activities during the time the 
applicant was in good standing with the Board, the 
applicant's rehabilitative efforts, restitution to damaged 
parties in the matter for which the penalty discipline was 
imposed, and the applicant's general reputation for truth and 
professional probity. For the purpose of this Paragraph, 
"applicant" shall, in the case of a firm, include partners, 
members, or shareholders. 

(e) Any person who applies for a modification of 
discipline and for a new certificate after revocation shall, in 
addition to the other requirements of this Section, comply 
with all qualifications and requirements for initial 
certification which e.xist at the time of the application. 

(f) No application for a new certificate or for modification 
of discipline shall be considered while the applicant is serving 
a sentence for any criminal offense. Serving a sentence 
includes incarceration, probation (supervised or 
unsupervised), parole, or suspended sentence, any of which 
are imposed as a result of having been convicted or plead to a 
criminal charge. 

(g) An application shall ordinarily be ruled upon by the 
Board on the basis of the disciplinary' file along with the 
recommendations and evidence submitted in support thereof. 
However, the Board may make additional inquiries of any 
person or persons, or request additional evidence it deems 
appropriate. 

(h) As a condition for a new certificate or modification of 
discipline, the Board may impose terms and conditions it 
considers suitable. 

Authority G.S. 55B-12: 93-2: 93-12(7a). 



.0005 REVOCATION OF CERTIFICATES 

(a) When a certificate is revoked either for a specific 
period of time or permanently , the certificate holder shall 
return the certificate to the Board office within five 15 days 
of receipt of notice of revocation. 

(b) Pursuant to the provisions of 21 NCAC 81 .0004, the 
Board may issue a new certificate under a new number to 
anyone whose certificate has been revoked. 

Authority- G.S. 55B-I2; 93-12(8); 93-12(9): 93-12(15). 

SUBCHAPTER 8J - RENEWALS AND 
REGISTRATIONS 

.0001 ANNUAL RENEWAL OF CERTinCATE, 
FORFEITURE, AND REAPPLICATION 

(a) All active CPAs must shall renew their certificates 
annually by the first day of July. The fee for such renewal is 
the maximum amount allowed by statute. 

(b) To renew a certificate a CPA most shall submit to the 
Board: 

(1) a properly completed certificate renewal application 
form; 

(2) a properly completed CPE report, as required by 21 
NCAC 8G .0406(a); and 

(3) the annual renewal fee. 

(c) Upon failure of a CPA to comply with any applicable 
part of Paragraph (b) of this Rule by July 1 , the Board wtii 
shall send notice of such failure in the form of a demand 
letter to the CPA at the most recent mailing address the Board 
has on file. Completed renewal application packages shall be 
postmarked with proper postage not later than 30 days after 
the mailing date of the demand letter, unless that date falls on 
a weekend, in which case the renewal package must be 
postmarked or received in the Board office on the next 
business day. For renewal packages sent via the U.S. Postal 
Service, only a U.S. Postal Service cancellation shall be 
considered as the postmark. If the renewal package is sent to 
the Board office via a private delivery service, the date the 
package is received by the delivery service shall be 
considered as the postmark. Subsequent failure of the CPA to 
comply with any applicable part of Paragraph (b) of this Rule 
within 30 days after such notice is mailed automatically 
results in forfeiture of the CPA's certificate, as required by 
G.S. 93-12(15). 

(d) Upon forfeiture of a certificate, the certificate holder is 
no longer a CPA and the Board wttt shall send notice of such 
forfeiture to the certificate holder by certified mail to the 
most recent mailing address the Board has on file. The 
certificate holder shall return the certificate to the Board 
office within five 15 days after receipt of notice of forfeiture 
or, if the certificate has been destroyed or lost, shall submit 
an affidavit, on a form supplied by the Board, within ten 15 
days of receipt of such notice that the certificate has been 
destroyed or has been lost and will shall be returned to the 
Board if found. 

(e) A person who has forfeited a certificate pursuant to 



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G.S. 93-12(15) for failure to renew his or her certificate may 
apply for reinstatement reissuance under 21 NCAC 8J .0006. 
£f} If a check or credit card authorization for the annual 
renewal fee fails to clear the bank, the annual renewal shall be 
deemed incomplete and returned. 

Authority G.S. 93-12(7a); 93-12(8); 93-12(8a). 

.0005 RETIRED AND INACTIVE STATUS: 
CHANGE OF STATUS 

(a) A CPA may apply to the Board for change of status to 
retired status or inactive status provided the CPA meets the 
description of the appropriate status as defined in 21 NCAC 
8A .0301. Application for any status change may be made on 
the annual certificate renewal form or another form provided 
by the Board. 

(b) A CPA who does not meet the description of inactive 
or retired as defined in 21 NCAC 8A .0301 may not be or 
remain on inactive or retired status. 

(c) A CPA on retired status may change to active status 
by: 

(1) paying the certificate renewal fee for the license 
year in which the application for change of status is 
received; and 

(2) furnishing the Board with evidence of satisfactory 
completion of 40 hours of acceptable CPE courses 
during the 12 month period immediately preceding 
the application for change of status. Eight of the 
required hours must be credits derived from a 
course or examination in North Carolina 
accountancy statutes and rules (including the Code 
of Professional Ethics and Conduct contained 
therein) as set forth in 21 NCAC 8G .0401(a). 

(d) A CPA on retired status may change to inactive status 
by su rr ende r ing his o r he r ce r tifica t e requesting inactive 
status and, if approved by the Board . shall be considered 
inactive . 

(e) Any individual on inactive status may change to active 
status by complying with the requirements of 21 NCAC 8J 
.0006(c). 

Authoriry- G.S. 93-12(8); 93-12(8b). 

.0006 FORFEITURE OR INACTIVATION OF 
CERTinCATE AND REISSUANCE 
OR RECAST ATEMENT 

(a) A certificate holder who determines that the certificate 
of qualification issued by the Board is no longer needed or 
desired may volunta r ily su rr ende r the ce r tificat e and request 
inactive status and, if approved, shall be considered inactive. 

(b) A person who is inactive or has su rr ende r ed o r 
forfeited a certificate is no longer a CPA and thus is not 
subject to the renewal fee or CPE requirements contained in 
these Rules. 

(c) A person who desires to reinstate a su rr ende r ed an 
inactive certificate or reissue a forfeited certificate shall make 
application and provide the following to the Board: 



( 1 ) payment of the current certificate application fee; 

(2) three certificates of moral character and 
endorsements as to eligibility signed by CPAs 
holding valid certificates granted by any state or 
territory of the United States or the District of 
Columbia; and 

(3) evidence of satisfactory completion of the CPE 
requirement described in 21 NCAC 8J .0005(c)(2). 

(d) The certificate may be reinstated or reissued in the 
discretion of the Board. 

Authority G.S. 93-12(5); 93-12(8a); 93-12(8b). 

.0008 FIRM REGISTRATION 

(a) All CPA firms must shall register with the Board 
within 30 days after opening a North Carolina office or 
beginning a new firm unless they are a professional 
corporation, professional limited liability company, or 
registered limited liability partnership, in which case 
they must shall register prior to formation pursuant to 
21 NCAC 8K -mm .0104 and .0301 . 

(b) In addition to the initial registration required by 
Paragraph (a) of this Rule, all CPA firms must shall register 
annually by January 31 with the Board upon forms provided 
by the Board. 

(c) The information provided by the registration shall 
include: 

(1) Either an application for exemption from SQR, a 
request to be deemed in compliance with SQR or 
registration for SQR, pursuant to 21 NCAC 8M 
.0102 and .0104; 

(2) For all firms not exempt from the SQR program, 
with the registration immediately following its 
review, the affidavit required by 21 NCAC 8M 
.0102(d); 

(3) For all North Carolina offices, an office 
registration form indicating the name of the office 
supervisor, the location of the office and its 
telephone number; 

(4) For all partnerships or registered limited liability 
partnerships, a list of all resident and nonresident 
partners of the partnership; 

(5) For all professional limited liability companies, the 
information set forth in 21 NCAC 8K .0104(d); 

(6) For all incorporated firms, the information set forth 
in 21 NCAC8K .0104(d); 

(7) For all firms, the appropriate registration fees as set 
forth in 21 NCAC 8J .0010; and 

(8) For all new firms, the percentage of ownership held 
individually by each partner, shareholder, or 
member: 

(A) in the new firm; and 

(B) at the year-end in each firm in which that 
partner, member, or shareholder was a 
partner, member, or shareholder during the 
preceding two years. 

(9) For all changes in ownership of a firm, the 



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1147 



PROPOSED RULES 



percentage of ownership held individualh' by each 
partner, shareholder, or member. 

(d) All information provided for registration with the 
Board shall pertain to events of and action taken during the 
year preceding the year of registration. The last day of the 
preceding calendar \ear is the "year-end". 

(e) With regard to Paragraph (c){3) of this Rule, one 
representative of a firm may file all documents with the Board 
on behalf of the firm's offices in North Carolina. However, 
responsibility for compliance with this Rule vrAi shall remain 
with each office supervisor. 

(f) With regard to Paragraph (c)(4) or (c)(5) of this Rule, 
one annual listing by a representative of the partnership, 
registered limited liability pannership. or professional limited 
liability company shall satisfy the requirement for all partners 
or members of the firm. However, each partner or member 
shall remain responsible for compliance with this Rule. The 
absence of a filing under Paragraph (c)(4) or (c)(5) of this 
Rule shall be construed to mean that no partnership, 
registered limited liability partnership, or professional limited 
liability company exists. 

(g) Notice that a firm has dissohed or any change in the 
information required by Paragraph (c)(3) of this Rule must 
shall be delivered to the Board's office within 30 days after 
the change or dissolution occurs. 

(h) Upon written petition by a firm, the Board may, in its 
discretion, grant the firm a conditional registration for a 
period of 60 days or less, if the firm shows that circumstances 
beyond its control prohibited it from registering with the 
Board, completing a quality review or notifying the Board of 
change or dissolution pursuant to Paragraphs (a), (b), (c), and 
(g) of this Rule. The Board may grant a second e.xtension 
under continued extenuating circumstances. 

(i) A complete registration, as required bv 21 NCAC 8J 
.0008(13) and (ci, shall be postmarked with proper postage not 
later than the last dav of Januar\- unless that date falls on a 
weekend or federal holidaw in which case the registration 
shall be postmarked or recei\ed in the Board office on the 
next business da\ . Onh a U.S. Postal Sen.ice cancellation 
shall be considered as the postmark. If a registration is sent 
to tlie Board office via a private delivery ser\'ice. the date the 
package is received by the deliven,- service shall be 
considered as tlie postmark. 

Authority G.S. 55B-10: 55B-12; 57C-1: 57C-2. 

.0010 REGISTRATION AND SQR FEES 

The annual registration fees shall be as follows: 

(1) For exemption from SQR. no more than ten dollars 
(SIO.OO): 

(2) For participation within SQR or for a request to be 
deemed in compliance with SQR, seventy-five 
dollars (S75.00) plus five dollars (S5.00) for each 
additional Nonh Carolina office of the firm not 
excused from SQR by 21 NCAC 8M .0204; 

(3) For all professional corporations or professional 
limited liability companies, twent\-five dollars 



(S25.00): and 
(4) For all non-incorporated firms which have offices 
both within and outside the state of Nonh Carolina, 
whether sole proprietorships, partnerships, or 
registered limited liability partnerships, an amount 
equal to two thousand five hundred dollars 
(52,500.00) or the number of owners of the firm 
multiplied by ten dollars ^510.00), whichever is 
less. 

Authority G.S. 55B-11; 55B-12; 57C-1. 

SUBCHAPTER 8K - PROFESSIONAL 

CORPOR.\TIONS AiNT) PROFESSIONAL LIMITED 

LIABILITY COMPANIES 



SECTION .0300 



.0301 



REGISTERED LIMITED LIABILFFY 
P.ARTNERSfflPS 



REGISTERED LEVOTED LIABILITY 
PARTNERSHIPS 

(a) Any Registered Limited Liability Partnership created 
pursuant to and in compliance with G.S. 59 shall also comply 
with all accountancy laws and rules pertaining to 
partnerships. 

(b) Before any CPA registered limited liability partnership 
may perform or offer to perform any professional services in 
this state, it shall file with the Board the certificate of 
registration of ttie Secretan- of State and appropriate fees 
payable to the Secretan' of State. 

Authority G.S. 59-84.2; 59-84.3: 93-12. 

SUBCHAPTER 8M - STATE QUALITY REVIEW 
PROGRAM 

SECTION .0100 - GENTRAL SQR REQUIREMENTS 

.0101 PUTIPOSE 

The Board has adopted a state quality review (SQR) 
program to help CPA professionals in the public practice of 
accountancy maintain the quality of their audit, r eview, 
review and compilation services, services, and agreed upon 
procedures. Participation in the program does not, however, 
guarantee or warrant that any services rendered by the 
reviewed firm do or vriW shall comply with the applicable 
professional standards. 

Authority G.S. 93-12(8c). 

.0102 REGISTRATION REQUTREMENTS 

(a) A firm which has not performed any audits, r eviews 
re\iews. or — com p ilations compilations, or agreed upon 
procedures during the 12 months prior to the year-end of the 
registration required by 21 NCAC 8J .0008(a) and (b) shall 
be exempt from the SQR program for the 12 months 
following the vear-end but not from registering with the 



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PROPOSED RULES 



Board. 

(b) Unless exempt under Paragraph (a) of this Rule, each 
ongoing firm most shall complete an SQR within 4-2 24 
months following the year-end of each registration unless it 
has completed an SQR within 24 months prior to the 
year-end. 

(c) Unless exempt under Paragraph (a) of this Rule, a new 
firm shall complete its initial SQR within 24 months of the 
date of its initial registration pursuant to 21 NCAC 8J 
.0008(a). 

(d) Every firm not exempt from SQR by Paragraph (a) of 
this Rule, after completion of a quality review, rrrast shall 
procure a statement signed by the review team captain, a 
statement signed by a member of the firm being reviewed, or 
letter of acceptance from an approved review program, stating 
that the firm has completed an SQR or one of the review 
programs listed or referred to in 21 NCAC 8M .0104. The 
firm shall submit the statement or documentation with the 
annual registration following the review as set forth in 21 
NCAC 8J .0008(c)(2). 

(e) For purposes of this Rule, an SQR is complete when 
the review team has delivered its report required by 21 
NCAC 8M .0306 to the reviewed firm. Any quality review 
other than SQR is complete when the review team has 
delivered its final report to the reviewed firm. If mailed, a 
report shall be deemed delivered when postmarked. 



(c) The set of engagements, if possible, shall include 
clients operating in different industries. For example, 
submission of one governmental audit, one manufacturing 
review and one contractor compilation would satisfy this 
requirement. 

(d) If a firm to be reviewed does a governmental audit, at 
least one shall be included in the set of engagements. 

(e) An office of the reviewed firm not participating in the 
programs listed in 21 NCAC 8M .0104(b)(1) and £2] shall 
select a set of engagements to be submitted for review as 
required by the AICPA Off-site Peer Review Program. 

Authority G.S. 93- J 2 (8c). 

.0204 CERTAIN OFFICES EXCUSED 

The following offices of participating firms are not 
required to participate in the SQR program: 

(1) offices which are not North Carolina offices, and 
which have not performed any audits, reviews, 
compilations, or agreed upon procedures for clients 
in North Carolina: and 

(2) North Carolina offices which have not performed 
any audits, r eviews, — or compilations, reviews, 
compilations, or agreed upon procedures for the 12 
months prior to the year-end set forth in 21 NCAC 
8J .0008. 



Authority G.S. 93-12(7b); 93-12(8c). 



Authority G.S. 93-12(8c). 



SECTION .0200 - DUTIES OF THE REVIEWED 
FIRM 

.0201 SELECTION OF ENGAGEMENTS TO BE 
REVIEWED 

(a) Each office of the reviewed firm not excused under 21 
NCAC 8M .0204 shall select a set of t hree engagements to be 
submitted for r eview review as required by the programs 
listed in 21 NCAC 8M .0104(b)(1) and tH. 

(b) A set of engagements for review shall include the 
accountant's report and financial statements for one audit, one 
review, and one compilation, and one agreed upon procedure. 
if these three levels of service have been performed by the 
office within the 12 months preceding the year-end. 

(1) If one or more levels of service have not been 
performed, the office shall select reports of the next 
highest level of service for a t otal of th r ee reports 
required to be submitted. 

(2) If, of the three levels of service, only compilations 
have been performed by the office, the set of th ree 
engagements shall include at least one compilation 
report on a complete set of financial statements 
which includes disclosures and one compilation 
report on a financial statement where management 
has elected to omit substantially all of the 
disclosures normally required by generally accepted 
accounting principles set forth in 21 NCAC 8N 
.0209, if both types of compilations are performed. 



CHAPTER 8 - BOARD OF CERTIFIED 
PUBLIC ACCOUNTANT EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina State Board of CPA Examiners 
intends to adopt rule cited as 21 NCAC 8F .0410 and amend 
21 NCAC 8A .0309. Notice of Rule-making Proceedings was 
published in the Register on October 15, 1997. 

Proposed Effective Date: January 1, 2001 

A Public Hearing will be conducted at 10:00 a.m. on 
January 26. 1998 at the NC Slate Board of CPA Examiners, 
1101 OberlinRd, Suite 104, Raleigh, NC 27605. 

Reason for Proposed Action: To amend and adopt language 
resulting from recent statutory changes pursuant to the 
education requirements for certified public accountants. 

Comment Procedures: Any person interested in these rules 
may submit comments by mailing the comments to Robert N. 
Brooks, Executive Director, NC State Board of CPA 
Examiners, PO Box 12827, Raleigh. NC 27605. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 



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1149 



PROPOSED RULES 



not have a subsianiial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER 8A - DEPARTMENTAL RULES 



shall be required to meet all education requirements in effect 
at the time of their subsequent application. 

Authority G.S. 93-12(5). 



SECTION .0300 - DEFINITIONS 

.0309 CONCENTRATION IN ACCOUNTING 

(a) A concentration in accounting most shall include: 

(1) at least 24 30 semester hours, or the equivalent in 
quarter hours, of undergraduate accountancy 
courses which shall include no more than six 
semester hours of accounting principles and no 
more than three semester hours of busmess law ; 

(2) at least i€ 20 semester hours or the equivalent in 
quarter hours, of graduate accounting courses that 
are open exclusively to graduate students; or 

(3) a combination of undergraduate and graduate 
courses which would be equivalent to Subparagraph 
(Dor (2). 

(b) If an a pp licant has a concentration in accounting bu t 
does not p ossess a bachelo r 's deg r e e , o r does not ex p ect to 



SUBCHAPTER 8F - REQUIREMENTS FOR 

CERTIFIED PUBLIC ACCOUNTANT 

EXAMINATION AND CERTIHCATE APPLICANTS 



within 90 days afte r the last dav of the 



(c)(bl 



r eceive such a deg re e 

CPA examination. — th e n the — ap p licant's concentration in 

accoun t ing must include : 

ti^ fou r cou r s e s in pr inci p les of accounting, 
one cou r se in cost accounting. 
one course in auditing, and 
on e cou r s e in income tax. 

In recognition of differences in the level of graduate 
and undergraduate courses, one semester (or quarter) hour of 
graduate study in accounting wttt shall be considered the 
equivalent of one and one-half semester (or quarter) hours of 
undergraduate study in accounting. 

ftj->(c) Up to four semester hours, or the equivalent in 
quarter hours, of graduate income tax courses completed in 
law schools may count toward the semester hour requirement 
of Paragraph (a) of this Rule. 

trt(d) Where, in the Board's discretion, an accounting 
course duplicates another course previously taken, only the 
semester (or quarter) hours of one of the courses wttt shall be 
counted in determining if the applicant has a concentration in 
accounting. 

fft(e) Accounting courses include such courses as 
principles courses at the elementary, intermediate and 
advanced levels; managerial accounting; business law; cost 
accounting; fund accounting; auditing; and taxation. There 
are many college courses offered that would be helpful in the 
practice of accountancy, but are not included in the definition 
of a concentration in accounting. Such courses include 
business finance, business — htwr business management, 
computer science, economics, writing skills, accounting 
internships, and CPA exam review. 

UQ A candidate who has conditional credit prior to January 
[^ 2001. mav continue to apply to su for the examination as 
long as the conditional credit is valid. A candidate who no 
longer has valid conditional credit after January' f, 2001. 



SECTION .0400 - EXPERIENCE 



.0410 



EDUCATION REQUIRED OF CANDLDATES 
FOR CPA CERTinCATION 

(a) G.S. 93-12(5)(a) sets forth the education required of 
candidates applying for CPA certification. The 150 semester 
hours required shall include a concentration in accounting, as 
defmed by 21 NCAC 8A .0309, and other courses as required 
by the Board as follows: 24 semester hours of coursework 
which shall include one three semester hour course from at 
least eight of the following ten fields of study: 

( 1 ) communications ; 

(2) computer technology; 

(3) economics; 

(4) ethics; 

(5) finance; 

(6) humanities/social science; 

(7) international envirormient; 

(8) law; 

(9) management; or 
(10) statistics. 

(b) Anyone applying for CPA certification who holds a 
Master's or more advanced degree in accounting, tax law, 
economics, finance, business administration, or a law degree 
with an emphasis in taxation or accounting from an accredited 
college or university or the equivalent thereof shall be in 
compliance with G.S. 93-12(5)(a). 

Authority G.S. 93-12(5). 

CHAPTER 48 - BOARD OF PHYSICAL 
THERAPY EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Board of Physical Therapy 
Examiners intends to adopt ndes cited as 21 NCAC 48C 
.0401: 48D .0112. amend 21 NCAC 48A .0103, .0105; 483 
.0102: 48C .0101 - .0103, .0402: 48D .0102. .0105 - .0106, 
.0109 - .0110: 48E .0101, .0104. .0110: 48F .0102: 48G 
.0202 - .0203, .0402 - .0404, .0504: 48G .0601: 48H .0701. 
.0704. and repeal 21 NCAC 48C .0301 - .0302: and 48D 
.0103. Notice of Rule-making Proceedings was published in 
the Register on October 75, 1997. 

Proposed Effective Date: August I. 1998 



1150 



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PROPOSED RULES 



A I*ublic Hearing will be conducted at 10:00 a.m. on 
February 5. 1998 at the Sienna Hotel. 1505 E. Franklin St., 
Chapel Hill. NC. 

Reason for Proposed Action: TJiese proposed rule changes 
will bring the rules into compliance with changes in testing 
procedures from paper and pencil examinations to computer 
based testing (CBT). to eliminate the categories of "Graduate 
Physical Tlierapist and Graduate Physical Therapist 
Assistant " as CBT has replaced this need, to set the language 
requirements for foreign trained applicants to the standards 
recommended by the Federation of State Boards of Physical 
Therapy, to clarify responsibilities of licensees, to raise 
application fees ($10.00) for Physical Therapist Assistants to 
more accurately reflect actual costs of administration, to 
identify new areas of disciplinary action as suggested by the 
Board's Investigative Committee, to clearly authorize 
subpoena power to the Investigative Committee for patient 
records, and to make rules gender neutral. 

Comment Procedures: Written comments may be submitted 
on the proposed rules to Ben F. Massey, Jr. . P.T.. Executive 
Director, at the Board's office: 18 West Colony Place. Suite 
120, Durham, NC 27705. Fax 919-490-5106. 

Fiscal Note: Tliese Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER 48A - ORGANIZATION 

Teee3 .0103 membership of board 

(a) Selection of Board Members. Nominations for 
members of the Board shall be sought from licensees residing 
in North Carolina. No more than ten 10 nominees receiving 
the highest number of nominations, plus ties, for each 
category (physical therapist, physical therapist assistant, 
medical doctor) shall be eligible to be placed on the ballot; 
provided, however, a nominee must receive more than one 
nomination to appear on the ballot. If no nominee receives 
more than one nomination, all nominees will be eligible to 
appear on the ballot. The ballots that are distributed to each 
licensee in North Carolina shall list each nominee's place and 
location of employment and practice setting. The results of 
the balloting shall be forwarded to the President of the North 
Carolina Physical Therapy Association, o r his designee, for 
submission to the Governor. 

(b) Decisions. All decisions of the Board will be r eached 
by a majo r ity of the enti r e Boa r d. 

(1) Decisions involving disciplinary proceedings will 
be reached by a majority of the Board Members 
present and eligible to participate in the disciplinary 
proceedings: provided that a quorum consists of 
five Board Members. 

(2) All other decisions of the Board will be reached by 
a majority of the Board. 



Authority G.S. 90-270.25; 90-270.26. 



The 
90-270 
ill 



0105 DEFINITIONS 

following definitions and the definitions in G.S. 

24 will apply throughout Chapter 48: 

"Educational programs" means acc r edited p hysical 
the r a p y pr og r ams and acc r edited p hysical the r a p is t 
assistant pr og r ams, physical therapy and phvsical 
therapist assistant educational programs accredited 
by the Commission on Accreditation of Phvsical 
Therapy Education (CAPTE). 

(2) "Computer Based Testing or CBT" means the 
Federation approved National Physical Therapist 
and Physical Therapist Assistant Examinations 
administered by a testing agency approved by the 
Board. 

(3) "Federation" means Federation of State Boards of 
Physical Therapy. 

Oi(4) "Graduated" or "graduation" means the completion 
of all requirements, including clinical experience, 
from an accredited program for physical therapists 
or physical therapist assistants. If an educational 
program certifies that the degree is assured and will 
be conferred at a later date, an applicant will be 
considered to have been graduated. 

t4i(5) Reserved. 

t5)£6l Reserved. 

t€i{l) Reserved. 

ffi(8) "PT exam" means a board approved licensing 
examination for physical therapists. 

m{9) Reserved. 
t^QOl "PTA exam" means a board approved licensing 
examination for physical therapist assistants. 
fM»(in Reserved. 

fi-h "PT g r aduate" o r "PTA g r aduate" r efe r s to a p e r son 

who has applied to the Board fo r licensu r e within 
STs — months — of — graduation — and — has — received 
autho r ization from the Board to peifuiiii as a 
physical the r a p ist o r a p hysical thera p ist assis t an t 



(12) 



f+^aiL 



unde r the r equi r ed su p e r vision. 

Reserved. 

"Recent g r aduate" means a p e r son who has been 

g r aduat e d from an educational pr og r am fo r six 

months o r less. 

Reserved. 



Authority G.S. 90-270.24; 90-270.26; 90-270.31. 

SUBCHAPTER 48B - TYPES OF LICENSES 

7^002 .0102 LICENSES BY ENDORSEMENT 

(a) Endorsement. Each application for endorsement shall 
be considered on an individual basis. 

(b) Examination Required. Only those persons initially 
licensed in another state by virtue of examination shall be 
considered for endorsement. Only the following 



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1151 



PROPOSED RULES 



examinations shall be considered: 

(1) For Physical Therapists: 

(A) Therapists licensed on the basis of a PT 
exam shall present total scores that meet the 
Nonh Carolina passing level. If adequate 
scores and information are not available from 
the other state, the Board may ask the 
applicant to have his the scores issued 
through the appropriate testing service. If 
the total score on the examination is 
unsatisfactory, the exam shall be repeated. 
The cost of the examination shall be paid by 
the applicant. 

(B) If licensed in another state by an examination 
compiled by that Board, the applicant shall 
supply information for the Board to attempt 
to obtain the examination in order to 
determine if it was substantially equal to the 
examination required by North Carolina at 
that time. If it cannot be determined that the 
examination was equal to the North Carolina 
examination or if the scores received on an 
acceptable examination did not meet the 
North Carolina passing requirement, the 
applicant shall take the PT exam. The cost 
of the examination shall be paid by the 
applicant. 

(C) A physical therapist currently licensed in 
another state whose license in that state was 
granted on the basis of the American 
Registry of Physical Therapists Examination 
shall be considered for endorsement. 

(B^ If a fo r eign-t r ained p hysical th e ra p ist was 

licensed in another state on the basis of the 
Ame r ican — Physical — The r a p y — Association's 
examination — for — fo re ign-t r ained — physical 
the r a p ists. — thts — examination — shaH — be 
conside r ed fo r endo r sement. 

(2) For Physical Therapist Assistants. Only those 
physical therapist assistants licensed in another state 
by a PTA exam shall be considered for 
endorsement. The examination score shall meet the 
North Carolina passing level. If not, the applicant 
shall be required to take the PTA exam and pay the 
cost of the examination. 

(c) Active License. Evidence shall be presented by the 
licensing Board in the other state that the applicant's license 
in that state was in effect on the date the application for North 
Carolina licensure was filed with the executive director or 
that it has been activated since that date, if it was not in effect 
on the date the application was submitted. This shall be done 
in accordance with Rule .0105 of Subchapter E of this 
Chapter. 

Authonn G.S. 90-270.26: 90-270. 31(b}: 90-270.33. 

SUBCHAPTER 48C - SCOPE OF PHYSICAL 



THERAPY PRACTICE 
SECTION .0100 - PHYSICAL THERAPISTS 

.0101 PERMITTED PRACTICE 

(a) Physical therapy is presumed to include any acts, tests, 
procedures, treatments or modalities that are routinely taught 
in educational programs (undergraduate and graduate) or in 
continuing education programs for physical therapists and are 
routinely performed in practice settings. 

(b) A physical therapist who employs acts, tests, 
procedures and modalities in which professional training has 
been received through education or experience is considered 
to be engaged in the practice of physical therapy. 

(c) A physical therapist must supervise physical therapist 
assistants, physical therapy aides, FF — g r aduat e s, — PTA 
g r aduates. PT students and PTA students to the extent 
required under the Physical Therapy Practice Act and these 
Rules. Physical therapy aides include all non licensed 
individuals aiding in the provision of physical therapy 
services. 

(d) The practice of physical therapy is the application of a 
broad range of evaluation and treatment procedures related to 
abnormality of human sensorimotor performance. It 
includes, but is not limited to, tests of joint motion, muscle 
length and strength, posture and gait, limb length and 
circumference, activities of daily living, pulmonary function, 
cardio-vascular function, nerve and muscle electrical 
properties, orthotic and prosthetic fit and function, sensation 
and sensory perception, reflexes and muscle tone, and 
sensorimotor and other skilled performances; treatment 
procedures such as hydrotherapy, shortwave or microwave 
diathermy, ultrasound, infra-red and ultraviolet radiation, 
cryotherapy, electrical stimulation including transcutaneous 
electrical neuromuscular stimulation, massage, debridement, 
intermittent vascular compression, iontophoresis, machine 
and manual traction of the cervical and lumbar spine, joint 
mobilization, machine and manual therapeutic exercise 
including isokinetics and biofeedback, and training in the use 
of orthotic, prosthetic and other assistive devices including 
crutches, canes and wheelchairs. 

Authorin' G.S. 90-270.24; 90-270.26. 

.0102 RESPONSIBILITIES 

(a) The physical therapist must determine the patient care 
plan and the elements of that plan appropriate for delegation. 

(b) The physical therapist must determine that those 
persons acting under his or her supervision possess the 
competence to perform the delegated activities. 

(c) P r io r to em p loying a PT g r aduate o r PTA g r aduate, the 
p hysical — the r a p ist — most — submit — a foiiii — to — tttc — Board 



i re d. 



acknowledging and acc ep ting th e su pe rvision r equir 
(c)td) The physical therapist may delegate appropriate 
responsibilities to physical therapist assistants, but the 
supervising physical therapist is responsible for determining 
that the PT or PTA student is working under appropriate 



1152 



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12:13 



PROPOSED RULES 



supervision at all times. 

(c) A licanscc must be pre s e n t in the facility when p atien t 
Ldjc activities arc undcnakcn by FT o r PTA graduates. 

(d) A supervising physical therapist must be familiar with 
the patient's evaluation and plan of care. In addition, the 
supervising physical therapist must be available and 
accessible at all times via telecommunication to the physical 
therapist assistant administering the plan of care. 

Authority G.S. 90-270.24; 90-270.26; 90-270.31; 90-270.34. 

.0103 PROfflBITED PRACTICE 

(a) A physical therapist is prohibited from employing acts, 
tests, procedures, treatments and modalities in the treatment 
of patients that are beyond the scope of the practice of 
physical therapy. Any patient whose condition requires 
medical diagnosis of disease or treatment beyond the scope of 
physical therapy must be referred to a licensed medical doctor 
or dentist. 

(b) A physical therapist may not permit any person 
working under his or her supervision to engage in acts or 
practices beyond the scope allowed by the Physical Therapy 
Practice Act or these Rules. 

(c) Physical therapy does not include the application of 
roentgen rays or radioactive materials, but consistent with the 
requirements of G.S. 90-270.35(4) this does not pr event a 
physical therapist is not prevented from requesting a 
radiologic consultation and reviewing x-rays. 

Authority G.S. 90-270.24; 90-270.26; 90-270.35. 

SECTION .0300 - RECENT GRADUATES 

.0301 PERMITTED ACTIVITIES 

A re c e n t g r aduate, who has been approved to t ake the 
examination, may apply for an autho r iza t ion t o engage in 
p atien t t r eatmen t as delegated by a supervising physical 
the r a p ist, so long as a p hysical the r a p ist is pr esent in the 
facility when p atient t rea t ment is unde rt aken. 

Authority G.S. 90-270.24; 90-270.26; 90-270.31. 



next succ e eding examination may r equest an informal meeting 
with the Boa r d to ex p lain why there was suffici e nt due caus e 
for ap p licant's failu r e to take the examination. If du e caus e is 
establish e d, the autho r ization can be extended for a p e riod not 
to exceed nine months. — The Board's determination as to 
whethe r the r e was due cause shall be final, 
(e) If the autho r ization to p e rform as a PT g r aduate o r PTA 
graduate ex p i r es prior to the issuance of a license, the FT 
g r aduate or PTA g r aduate will no longe r be eligibl e to 
peifuiii ' i as a physical the r a p ist o r p hysical therapist assistant 
in this state. The Board will fii r nish the su p e r vising p hysical 
therapist with a form when an autho r ization has ex p i r ed, and 
the form must be acknowledg e d and r e tu r n e d to the Boa r d. 

Authority G.S. 90-270.24; 90-270.26; 90-270.31. 

SECTION .0400 - PHYSICAL THERAPY AIDES 

.0401 DEFINITION 

Any person not licensed in accordance with the provisions 
of the physical therapy practice act when aiding in the 
provision of physical therapy services under the supervision 
of a licensed physical therapist or physical therapist assistant 
shall be referred to as a physical therapy aide. 

Authority G.S. 90-270.24; 90-270.26. 

Te4M .0402 FUNCTION 

(a) A physical therapy aide may perform only those acts 
delegated by a licensed physical therapist or physical therapist 
assistant. 

(b) A physical therapist or physical therapist assistant must 
be present in the same facility and supervising any physical 
therapy aide to whom acts are delegated. 

(c) A physical therapy aide shall not engage in the pr actice 
of — physical — t he r a p y, performance of physical therapy 
activities without appropriate supervision by a licensee. 

Authority G.S. 90-270.24; 90-270.26. 

SUBCHAPTER 48D - EXAMINATIONS 



.0302 AUTHORIZATION 

fa) — P r io r to conunencing employment, a re c e nt g r aduat e is 
r equired to fu r nish the Board with a completed application for 
licensu r e and a foiui signed by both the su p ervising physical 
the r a p ist and th e a pp licant acknowledging and acce p ting t he 
limi t ations on p ractice imposed. 

-(b) — In the event th ere is a change in em p loyment by a 
su p ervising p hysical the r a p ist, a PT g r aduate o r a PTA 
g r aduate, a new authorization must be obtained, 
(c) An authoriza t ion shall expire upon the occu rr ence of one 
of the following: 

f+) failu r e to take the nex t scheduled examination; 

(2) notification of exam failu r e; 



Oi issuance of lic e ns e . 

(d) Any PT g r aduate o r PTA g r aduate who fails to take the 



-MQ2 .0102 SCHEDULE AND LOCATION OF 
EXAMINATION 

Examinations will be schedul e d a t least twice annually with 
the date and p lace se t a t the disc r etion of th e Board. 
Examinations may be scheduled by the applicant throughout 
the vear at sites designated by the testing agency recognized 
by the Board. 

Authority G.S. 90-270.26. 

76663 .0103 NOTICE OF EXAMINATION 

(a) Notices. Adequate notice of dates of e xaminations shall 
be fu r nished to all educational pr ograms in No r th Ca r olina 
and to all persons curr e ntly lic e ns e d with the Board. 
— (tr) — Examinees. — W r itt e n notice of time, date and p lace of 



12:13 



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January 2, 1998 



1153 



PROPOSED RULES 



e xamina t ion will be scut to each person scheduled to take the 
e xajtiination. 

Authorin G.S. 90-270.26; 93B-8(b). 

Teee5 .0105 examination scores 

(a) Passing Level. For examinations administered by a 
nationally recognized testing ser\'ice the — Professional 
examination 5ei - vice or Assessment Systems, Inc. prior to 
July 1. 1993. the passing level for the FT exam and the FT A 
exam shall be 1.5 standard deviations below the national 
average for the raw score of the examination. Thereafte r , the 
The criterion-referenced passing point shall be equal to a 
scaled score of 600 based on a score range of 200 - 800 as 
adopted by the Federation of State Boards of Physical 
Therapy on February 2. 1993. 

(b) Transfer of Scores. Scores will be released as follows: 

(1) To an individual who took the examination in 
North Carolina upon a t his request and with no 
charge; 

(2) To licensing Boards in other states upon the request 
of the individual and the payment of the fee; 
licensure information may be included with the 
score release; 

(3) To other persons or institutions upon the request of 
the individual. 

(c) Scores Related to Passing Level. Scores released to the 
individual will include the North Carolina passing level for 
the examination. 



tWW .0110 ADMINISTRATION OF EXAMINATION 

The applicant shall be required to comply with the 
procedures established by the testing center at the site where 
the test is administered. 



(a) P r oc t o r ing. The written examination shall be pr octored 
by at leas t one m e mb er of the Board. b> ' the executive 
di r ecto r o r by th e p e r sonnel of a professional testing sci ' vice. 
Other proctors shall be r etained as r equired. 

(b) Identification. A person shall b r ing identification with 
a p h o tog r a p h t o the examination and show it to the proctor in 
o r de r to si t fo r the examination. 

i:cl Qu e stionabl e — Conduct. A — p e r son — engag e d — m 

questionable — conduct — that — re — eithe r — dis r u p tiv e — m — other 
examinees or may appear to be chea t ing on the examination 
shall be r equi r ed to sign a warning slip. — Fu r the r violation of 
examinati o n s e curity shall r esult in forfeiture of his right to 
continue th e examination and may subjec t the a p plicant to 
ptrmai ' icn t denial of consid er ation fo r licensure. 

fd^ — Cheating. — A pr octor shall sto p a p erson engaged in 
flag r ant — and — obvious — cheating — from — continuing — the 
examination. — Such p e r sons may be subject to peiuidiieut 
denial of conside r ation for licensu re . 



Authority G.S. 90-270.26; 90-270.29; 90-270.30; 90-270.36. 

.0112 COMPUTER EXAMINATION 

The test will be a Computer Based Test (CBT) and will be 
administered by the National Testing Service recognized by 
the Board. 



Authont\- G.S. 90-270.26; 90-270.33. 



Authority G.S. 90-270.26; 90-270.29; 90-270.30. 



-MQ6 .0106 NOTinCATION OF EXAMINATION 
RESULTS 

fct) Individuals. All applicants will be notified in writing 
of the results of the examination, examination within 10 days 
of the Board's receipt of the results. 

tbi — North Carolina Educational Programs. — Af t e r each 
e xamination t h e North Carolina educa t ional p r og r ams tha t 
had g r aduates taking the e xamina t ion in North Carolina will 
b e s e nt sco re s, bu t identifica t ion numbe r s and names will not 
be — included. — The No r th Carolina p assing level for the 
examination will be included. 

Authority G.S. 90-270.26. 

76669 .0109 RETAKING EXAMINATION 

(a) Arrangements for Retake. To retake the examination, 
the applicant shall notify the executive director at least GO 
days in advance of the examina t ion date and pa\' the retake 
fee and the examination cost at that time. 

(b) Retake Examination. The Board shall administer a 
panicular form of the examination to an applicant only one 
time. 

Authority- G.S. 90-270.26; 90-270.29; 90-270.30; 90-270.33. 



SUBCHAPTER 48E - APPLICATION FOR LICENSURE 
SECTION .0100 - REQUIREMENTS 

.0101 FILING APPLICATION 

(a) It is the responsibility of the applicant to ascertain that 
his credentials are filed properly with the executive director. 

(b) To be cenain an applicant shall be considered for the 
desired examination date, the application shall be submitted 
to the executive director at least 66 30 days prior to the 
examination. 

(c) The Board will not consider an application until the 
applicant has successfully completed all the academic 
requirements and all clinical affiliations. 

Authority G.S. 90-270.26; 90-270.29; 90-270.31 fb). 

.0104 EXAMINATION SCORES 

Persons seeking licensure by endorsement shall have their 
examination scores sent to the executive secr e tary director by 
a state of endorsement, by the state in which the examination 
was taken, or by report from the appropriate testing ser\ice. 
The scores shall be on a form bearing the official signature 
and seal of the reporting Board. 



1154 



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PROPOSED RULES 



Authority G.S. 90-270.26; 90-270. 3 1(b). 



LICENSEES 



.0110 FOREIGN-TRAINED PHYSICAL 
THERAPISTS 

(a) English Translations. All application forms and 
supporting documents shall be in English or accompanied by 
an English translation. 

(b) Supporting Documents. In addition to the other 
requirements of this Section and G.S. 90-270.30, each 
foreign-trained applicant shall submit the following: 

(1) If the applicant has been graduated from a physical 
therapy educational program, a certification of 
physical therapy education shall be submitted 
directly to the Board. 

(2) If the applicant does not meet the requirements of 
(b)(1) of this Rule. G.S. 90-270.29(2). the Board 
shall examine the applicant's educational 
background to determine if the general college and 
professional instruction is substantially equivalent 
to that of a United States physical therapy 
educational program. At a minimum, 120 semester 
hours of college education is required, which 
includes a minimum of 5? 60 semester hours of 
professional curriculum, including basic health 
sciences, clinical sciences and clinical education. 
education, and a minimum of 50 semester hours of 
general education. It is the responsibility of the 
applicant to make arrangements with a credentialing 
service to have the credentials evaluated. 
Evaluation of credentials, to be acceptable to the 
Board, shall be done by a service that has a 
physical therapist consultant on its staff. The 
Board shall make its own review of applicant's 
educational program and is not bound by the 
findings of the credentialing service. 

(3) Proof acceptable to the Board shall be provided 
that: 

(A) For examinations administered prior to 
August i^ 1998. July 1. 1 99 5, the required 
minimum score of 210 on the TSE (Test of 
Spoken English) or the SPEAK (Speaking 
Proficiency English Assessment Kit) 
examination was obtained; 

(B) For examinations administered on or after 
August J^ 1998. July 1, 19 9 5, the required 
minimum score of 45 50 on the TSE 
examination or the SPEAK examination was 
ob t ained; obtained, the required minimum 
score of the Test of Written English (TWE) 
of 4.5. and the Test of English as a Foreign 
Language (TOEFL) of 560l or 
English is the applicant's native language. 



(C) 



Authority G.S. 90-270.26; 90-270.29; 90-270.30; 90-270.31. 

SUBCHAPTER 48F - CERTinCATES: FEES: 
INVESTIGATIONS: RECORD OF 



76002^0102 FEES 

(a) The following fees are charged by the Board: 

(1) application for physical therapist licensure: 

(A) by endorsement or examination taken in 
another state, one hundred dollars ($100.00); 

(B) by examination, one hundred dollars 
($100.00) plus cost of examination; 

(C) by revival of lapsed license pursuant to 21 
NCAC 48G .0203(2)(a), one hundred dollars 
($100.00) plus cost of examination; 

(D) by revival of lapsed license pursuant to 21 
NCAC 48G .0203(2)(b), one hundred dollars 
($100.00); 

(2) application for physical therapist assistant 
licensure: 

(A) by endorsement or examination taken in 
another state, ninety dolla r s ($90.00) one 
hundred dollars ($100.00); 

(B) by examination, ninety dollars (90.00) one 
hundred dollars ($100.00) plus cost of 
examination; 

(C) by revival of lapsed license pursuant to 21 
NCAC 48G .0203(2)(a), ninety dollars 
($90.00) plus cost of examination; 

(D) by revival of lapsed license pursuant to 21 
NCAC 48G .0203(2)(b), ninety dollars 
($90.00); 

renewal for all persons, forty dollars ($40.00); 

penalty for late renewal, twenty dollars ($20.00) 

plus renewal fee; 

revival of license lapsed less than five years, 

twenty-five dollars ($25.00) plus renewal fee; 

transfer of licensure information fee, including 

either the examination scores or licensure 

verification or both, fifteen dollars ($15.00); 

retake examination, thirty dollars ($30.00) plus 

actual cost of examination; 

certificate replacement or duplicate, fifteen dollars 

($15.00); 

directory of licensees, five dollars ($5.00); 

computer print-out or labels of any portion of list 

of physical therapists, sixty dollars ($60.00); 

computer print-out or labels of any portion of list 

of physical therapist assistants, sixty dollars 

($60.00); 

processing fee for returned checks, maximum 

allowed by law. 

(b) The application fee is not refundable. The Board shall 
consider written requests for a refund of other fees based on 
personal or economic hardship. 

(c) A certified check, money order or cash is required for 
payment of application fees listed in p a r ag r a p h Parts 
(a)(1)(A), (B), (C),(D), and (2)(A),(B),(C), and (D) of this 
rule. Rule. 



(3) 
(4) 

(5) 

(6) 



(7) 

(8) 

(9) 
(10) 

(11) 



(12) 



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1155 



PROPOSED RULES 



Authority G.S. 25-3-512; 90-270.33. 

SUBCHAPTER 48G - RETENTION OF LICENSE 
SECTION .0200 - LAPSED LICENSES 

.0202 NOTinCATION 

A person who has not renewed hts the license by February 
1 will be advised that the h« license has lapsed by written 
communication to the last known mailing address on record 
with the Board. Unless the person has advised the Board that 
they do not intend to renew their license, then a similar 
notification will be sent to the person's last known employer. 
If the person continues to work in North Carolina, his 
employer will be notified of the lapsed license. 

Authority G.S. 90-270.26; 90-270.32. 

.0203 REVIVAL OF LAPSED LICENSE 

The following methods may be used to revive a license: 

(1) A license that has lapsed less than five years may 
be revived by payment of the revival of lapsed 
license fee and the current year's renewal fee and 
by completion of the revival form. 

(2) A license that has lapsed more than five years may 
be revived by payment of the application fee, 
completion of the application forms, and: 

(a) passing the "PT exam" (if trained as a 
physical therapist) or the "PTA exam" (if 
trained as a physical therapist assistant); or 

(b) satisfactorily compiling at least 500 hours 
within the period of one year in the 
following manner: between 50 and 200 class 
hours of course work (ie, refresher courses, 
continuing education, pertinent college 
courses) approved by the Board and the 
remaining hours working as an aide under 
the supervision of a licensed physical 
therapist, providing the Board authorizes the 
training and the supervising physical 
therapist accounts for the clinical hours; or 

(c) endorsement of a current license in another 
state as provided by Subcha pt e r 48D Rule 
.0002 of this Cha p t e r. H NCAC 48B 
.0102. 

Authority G.S. 90-270.26; 90-270.32; 90-270.33. 

SECTION .0400 - PROBATION OR VVARiNING 

.0402 GROUNDS FOR WARNING 

The Board may issue a warning to any licensee p e r son who 
engages in conduct that might lead to the revocation or 
suspension of a license for the commission of acts prohibited 
by G.S. 90-270.35 or G.S. 90-270.36. 

Authority- G.S. 90-270.26; 90-270.35; 90-270.36. 



.0403 CONDITIONS FOR PROBATION OR 
WARNING 

The Board may require any licensee p e r son placed on i 
probation and any licensee p e r son to whom a warning is \ 
issued to furnish the Board with a certified statement that he 
the licensee will not engage in conduct prohibited by G.S. 
90-270,35 or G.S. 90-270.36. 

Authority G.S. 90-270.26; 90-270.35; 90-270.36. 

.0404 NOTIFICATION AND HEARING 

(a) Any licensee person subject to being placed on 
probation or receiving a warning will be notified of the 
alleged acts or conduct warranting the intended action, and 
such licensee p e r son shall be given an opponunity for an 
informal meeting with the Board to show why he the licensee 
should not be placed on probation or receive a warning. 
Provided, however, nothing herein shall limit a licensee's 
right to request a contested case hearing. 

(b) Before a private reprimand is issued to a licensee, the 
licensee may request an informal meeting with the Board to 
show why the licensee should not receive a private 
reprimand. 

Authority G.S. 90-270.26; 90-270.35; 90-270.36. 

SECTION .0500 - COMPLAINTS, INVESTIGATIONS, 
CONTESTED CASE HEARINGS 

.0504 COMPLAINTS AND INVESTIGATIONS 

(a) In order to file a complaint with the Board, the 
following information shall be submitted to the Board in 
writing: 

(1) name and address of person alleged to have violated 
Physical Therapy Practice Act; 

(2) succinct statement of conduct giving rise to 
complaint; 

(3) name, address and telephone number of 
complainant. 

(b) Upon receipt of a written complaint alleging 
misconduct that might subject a licensee to disciplinary 
action, or upon the receipt of confirmation that a violation of 
the Physical Therapy Practice Act has occurred, the Board 
may investigate such matter to determine whether probable 
cause exists to institute formal disciplinary proceedings. 

(c) The executive director of the Board and a member 
appointed by the Chair shall serve as a probable cause or 
investigating committee. This committee may be assisted by 
the Board's attorney or investigator or by a former member of 
the Board retained for the purpose of such investigation. 

(d) The probable cause committee shall investigate the 
complaint. In conducting its investigation, the investigative 
committee shall have the authority to issue subpoenas for the 
production of documents pursuant to the provision of 21 > 
NCAC 48G. 0512. The committee shall determine whether \ 
or not there is probable cause to believe that the licensee has 



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violated any statute or board rule which would justify a 
disciplinary hearing. If the committee determines that such 
probable cause exists, the committee may confer with the 
licensee in an attempt to settle the matter through informal 
means. If the committee and the licensee reach an agreement 
on the disposition of the matter under investigation, the 
committee may cause to be drafted a proposed settlement 
agreement, which may include findings of fact, conclusions 
of law, and a consent order, for presentation to and 
consideration by the Board. Such settlement agreement shall 
be presented to and approved by the licensee before they are 
presented to the Board for consideration and approval . 

(e) If the probable cause committee and the licensee are not 
able to settle the matter under investigation by informal 
means, the licensee may request a contested case hearing 
pursuant to Rule .0502 of this Section or the Board may give 
notice of a disciplinary or contested case hearing, if required. 

(f) If probable cause is found, but it is determined that a 
disciplinary hearing is not warranted, the committee may 
recommend that the Board issue a reprimand to the licensee. 
The committee shall mail a copy of its recommendation to the 
licensee. 

(g) Within 20 days after receipt of the recommendation, 
the licensee may refuse the reprimand and request a contested 
case hearing pursuant to this Section. Such refusal and 
request shall be filed with the Board. The legal counsel for 
the Board shall thereafter prepare, file, and serve a Notice of 
Hearing. 

(h) In the alternative, within 20 days after receipt of the 
recommendation, the licensee may request an informal 
meeting with the Board to discuss the basis of the 
committee's recommendation and present reasons why the 
Board should not follow the committee's recommendation. 
There shall be no sworn testimony presented, nor shall there 
be a formal record of the proceedings. 

(i) If the licensee does not request a contested case hearing 
or an informal meeting with the Board, the Board shall 
determine whether to accept the committee's recommendation 
and issue the reprimand. A letter of caution is not considered 
disciplinary action against a licensee. 

(j) Participation by a current Board member in the 
investigation of a complaint shall disqualify' that Board 
member from panicipating in the decision making process of 
a contested case hearing. 

(k) Subsequent to the issuance of a notice of hearing, the 
attorney prosecuting the contested case for the Board may not 
communicate, directly or indirectly, in connection with any 
issue of fact or question of law, with any party, including the 
members of the Board assigned to make a decision or to make 
findings of fact and conclusions of law in the contested case, 
except on notice and opponunity for all parties to participate. 
However, the attorney prosecuting the matter for the Board 
may continue to conmiunicate concerning such contested case 
with the members of the probable cause committee who 
investigated such matter, with persons not parties to the 
contested case who may be called as witnesses, including the 
person who filed the complaint and with the Board members 



about other matters. 

Authoriry G.S. 90-270.26: 150B-38: 150B-40. 

SECTION .0600 - DISCIPLINARY ACTION 

.0601 PROHIBITED ACTIONS 

(a) Behaviors and activities which may result in 
disciplinary action by the Board pursuant to G.S. 90- 
270.36(1), (6), (7), (8) and (9) and G.S. 90-270.35(4) 
include, but are not limited to, the following; 

(1) recording false or misleading data, measurements 
or notes regarding a patient; 

(2) delegating responsibilities to a person when the 
licensee delegating knows or has reason to know 
that the competency of that person is impaired by 
physical or psychological ailments, or by alcohol or 
other pharmacological agents, prescribed or not; 

(3) practicing or offering to practice beyond the scope 
permitted by law; 

(4) accepting and performing professional 
responsibilities which the licensee knows or has 
reason to know that he or she is not competent to 
perform; 

(5) performing, without adequate supervision, 
professional services which the licensee is 
authorized to perform only under the supervision of 
a licensed professional, except in an emergency 
situation where a person's life or health is in 
danger; 

(6) harassing, abusing, or intimidating a patient either 
physically or verbally; 

(7) failure to exercise supervision over persons who are 
authorized to practice only under the supervision of 
the licensed professional; 

(8) exercising undue influence on the patient, including 

with respect to the r ecommendation — of 

recommending uimecessary treatment treatment, 
supplies, or equipment; fo r t he financial gain of the 
p rac t i t ioner or of a t hird p arty; 

(9) directly or indirectly offering, giving, soliciting, or 
receiving or agreeing to receive, any fee or other 
consideration to or from a third party for the 
referral of a client; 

(10) failure to file a report, or filing a false report or 
failure to respond to an inquiry within a reasonable 
time, required by law or by the Board, or impeding 
or obstructing such filing or inducing another 
person to do so; 

(11) revealing identifiable data, or information obtained 
in a professional capacity, without prior consent of 
the patient, except as authorized or required by 
law; 

(12) guaranteeing that a cu r e will r esult a patient will 
benefit from the performance of professional 
services; 

(13) altering a license or renewal card by changing the 



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expira t ion date, ceiiification number, o r any other 
information appearing thereon: on t he license: 

(14) using a license or renewal card which has been 
altered: 

(15) permitting or allowing another person to use his or 
her license or renewal card for the p u rp ose practice 
of physical therapy; 

(16) delegating professional responsibilities to a person 
when the licensee delegating such responsibilities 
kn o w knows or has reason to know that such a 
person is not qualified by training, by experience, 
or by licensu r e: licensure to perform such 
responsibilities: 

(17) violating any term of probation, condition, or 
limitation imposed on the licensee by the Board; 

(18) inappropriately kissing, fondling, touching, or 
engaging in any other ac t ivi t ies of a sexual natu r e 
with a p atient : inappropriate activities, advances. 
or comments of a sexual nature with any person 
with whom the licensee interacts in practicing 
physical therapy; 

(19) billing or charging for services or treatment not 
performed: 

(20) refusing to t r eat a patient because third party 
benefits — have — ex p i r ed. making treatment 
recommendations or basing a patient's continued 
treatment on the extent of third party benefits 
instead of the patient's condition; 

(21) willfully or intentionally communicating false or 
misleading information regarding a patient; 
harassing, abusing, or intimidating any person, 
either physically or verbally, in the presence of a 
patient; 

using a form of a license or renewal card that was 
not issued by the Board or is not current. 

(b) When a person licensed to practice physical therapy is 
also licensed in another jurisdiction and that other jurisdiction 
takes disciplinary action against the licensee, the North 
Carolina Board of Physical Therapy Examiners may 
summarily impose the same or lesser disciplinary action upon 
receipt of the other jurisdiction's actions. The licensee may 
request a hearing. At the hearing the issues shall be limited 
to: 

(1) whether the person against whom action was taken 
by the other jurisdiction and the North Carolina 
licensee are the same person; 

(2) whether the conduct found by the other jurisdiction 
also violates the Nonh Carolina Physical Therapy 
Act; and 

(3) whether the sanction imposed by the other 
jurisdiction is lawful under North Carolina law. 

(c) In accordance with G.S. 150B-3(C) a license may be 
summarily suspended if the public health, safety, or welfare 
requires emergency action. This determination is delegated to 
the Chairman or Executive Director of the Board pursuant to 
G.S. 90-270.26(8). Such a finding shall be incorporated with 
the order of the Board of Physical Therapy Exaimners and the 



(22) 



(23) 



order shall be effective on the date specified in the order or 
on service of the certified copy of the order at the last known 
address of the licensee, whichever is later, and continues to 
be effective during the proceedings. Failure to receive the i 
order because of refusal of service or unknown address does ' 
not invalidate the order. Proceedings shall be commenced 
promptly . 

(d) When the Board receives a notice from a Clerk of 
Superior Court that the license of a physical therapist or a 
physical therapist assistant has been forfeited pursuant to 
G.S. 15A-1331A, the licensee shall be required to surrender 
the license to the Board immediately and not to engage in the 
practice of physical therapy during the period of forfeiture. 
Forfeiture under this section shall not limit in any way the 
Board's authority to take further disciplinary action against 
the licensee in accordance with the Board's rules and 
procedures. 

Authority G.S. 15A-1331A; 90-270.24; 90-270.26; 90- 
270.35(4); 90-270.36; 150B-3. 

SUBCHAPTER 48H - RULEMAKING AND 
ADMINISTRATIVE HEARING PROCEDURES 

SECTION .0700 - ADOPTION OF RULES 

.0701 PETITIONS 

(a) Any person wishing to submit a petition to the Board 
requesting the adoption, amendment or repeal of a rule shall 
file the petition with the Board's executive director, director 
at the add r ess s pe cified in 21 NCAC 48A .0001 of these 
Rules. 

(b) The petition shall contain the following information: 

(1) a proposed text of the rule to be adopted or 
amended or a citation to the rule to be repealed; 

(2) a statement of the reason for the proposal, 
including statutory authority; 

(3) effect of the proposed rule change on the practice of 
physical therapy; 

(4) any data supponing the proposal; 

(5) name, address and telephone number of each 
petitioner. 

(c) The Board shall consider whether to grant or deny a 
petition at its next regularly scheduled meeting following 
receipt of a completed petition, but in any event, no more 
than 120 days after a completed petition is filed with the 
Board. 

(d) If the Board denies the petition, the petitioner shall be 
notified in writing, stating the reasons for the denial. If the 
decision is to approve the petition, the Board shall initiate a 
rulemaking proceeding by issuing a rulemaking notice, as 
provided in this Subchapter. 

Authority G.S. 90-270.26; 150B-20. 

.0704 DECLARATORY RULINGS 

(a) All requests for a declaratory ruling shall be in writing 



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and submitted to the Board at the add r ess specified in 21 
NCAC 48 A .0001 Board's Executive Director and must 
include the following information: 

( 1 ) name and address of person requesting declaratory 
ruling; 

(2) statute or rule to which request relates; 

(3) statement of the manner in which the person 
requesting declaratory ruling is aggrieved by the 
rule or statute or its potential application; and 

(4) the consequences of a failure to issue a declaratory 
ruling. 

(b) Whenever the Board for good cause finds that issuance 
of a declaratory ruling is undesirable, it may refuse to issue 
one. The person requesting the declaratory ruling shall be 
furnished with a full and complete statement from the Board 
as to why the request is being denied. 

Authority G.S. 90-270.26; 150B-4. 

******************** 

CHAPTER 58 - REAL ESTATE COMMISSION 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Real Estate Commission intends 
to adopt rules cited as 21 NCAC 58A .0114. .0614; 58B 
.0402, amend 21 NCAC 58A .0101, .0103 - .0105. .0107 - 
.0110, .0302, .0502. .0505 - .0506, .0601. .1702; 5 BE 
.0407, and repeal 21 NCAC 58A .0613. Notice of Rule- 
making Proceedings was published in the Register on October 
15, 1997. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 3:00 p.m. on 
February 10, 1998 at the North Raleigh Hilton, 3415 Wake 
Forest Rd., Raleigh, NC 27609. 

Reason for Proposed Action: 21 NCAC 58A .0101 - to 
eliminate the requirement that real estate licensees display 
their license certificates at their offices, and instead require 
licensees to produce their license pocket cards upon request 
as proof of licensure. 21 NCAC 58A .0103 - to clarify that 
licensees must report personal and business name changes to 
the Commission within 10 days of such change. 21 NCAC 
58A .0104 - to include a discussion of designated agency in 
the "Description of Agent Duties and Relationships" 
statement. 21 NCAC 58A .0105 - to eliminate the 
requirement that licensees furnish the Commission a copy of 
their assumed name registration certificate(s) when a firm or 
assumed name does not set forth the surname of the licensee. 
21 NCAC 58A .0107 - to codify the requirement that brokers 
shall deposit cash into their trust accounts within three 
banking days; to clarify that licensees must safeguard trust 
monies, and not convert or allow others to convert them to 
their personal use; to codify a procedure for disposing of 
disputed and abandoned trust monies. 21 NCAC 58A .0108 - 



to codify- that transaction records, including records of 
incomplete transactions, must be retained by the broker-in- 
charge of the office where the transaction was conducted. 21 
NCAC 58A .0109 - to codify that real estate licensees shall 
not compensate unlicensed persons or entities engaging in 
real estate brokerage activity in this state. 21 NCAC 58A 
.0110 -to clarify that a broker can be the broker-in-charge of 
more than one firm when all of the firms have the same 
physical location; to clarify that an office can have only one 
broker-in-charge; and to eliminate the requirement that a 
" Verification of Salesman Experience " form be fitrnished to 
all salesmen when they terminate their association with their 
brokers-in-charge, and instead require that the form be 
provided upon request from the salesman. 21 NCAC 58A 
.0114 - to codify the Residential Property Disclosure 
Statement required by G.S. 47E-4(b) and the requirement that 
licensees use said form. 21 NCAC 58A .0302 -to reinsert 
paragraph (c) which was inadvertently omitted from the 
existing rule. 21 NCAC 58A .0502 - to codify the 
requirement that, when a licensed business entity is the 
principal broker of another licensed business entity, the 
individual licensed broker of the principal broker entity shall 
be responsible for assuring performance of the principal 
broker's duties with regard to both entities. 21 NCAC 58A 
.0505 - to refine the requirements for reinstatement of a 
license that has been suspended, especially when the 
suspension is for more than one year. 21 NCAC 58A .0506 - 
to codify the requirement that, in addition to the salesman 's 
broker-in-charge, the salesman shall be responsible for 
notifying the Commission when the broker-in-charge 
terminates his/her supervision of the salesman. 21 NCAC 
58A .0601 - to codify that licensees must respond in writing 
to written inquiries from the Commission. 21 NCAC 58A 
.0613 - to repeal obsolete rule regarding the Appraisal 
Board. 21 NCAC 58A .0614 - to codify procedures for the 
summary suspension of real estate licenses. 21 NCAC 58A 
. 1 702 - to codify that reinstatement of a revoked license, a 
surrendered license or a license expired for more than one 
year will be treated as an "initial licensure " for continuing 
education purposes. 21 NCAC 58B .0402 - to clarify that 
licensees must disclose their agency relationships to the 
parties in timeshare transactions. 21 NCAC 58E .0407 - to 
eliminate the requirement that continuing education sponsors 
must submit a separate check for each separate class session 
when paying student fees to the Commission. 

Comment Procedures: Comments regarding the rules may 
be made orally or submitted in writing at the public hearing. 
Written comments not submitted at the hearing may be sent to 
or delivered to Ms. Janet B. Dutton c/o North Carolina Real 
Estate Commission, P.O. Box 17100, Raleigh, NC 27619- 
7100, so as to be received by February 2, 1998. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government fiinds. These Rules do 
not have a substantial economic impact of at least fiive million 
dollars ($5,000,000) in a 12-month period. 



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SUBCHAPTER 58A - REAL ESTATE BROKERS 
AND SALESMEN 

SECTION .0100 - GENERAL BROKERAGE 

.0101 PROOF OF LICENSURE 

(a) The annual license renewal pock et card issued by the 
Commission lo each licensee shall be retained b^ the licensee 
as evidence of licensure of a real estate b r okdage firm, its 
princi p al broker, broke r -in-chai ' gc and the license of each 
broker and salesman engaged in r eal estate activiti e s at the 
office of the b r oker-in-ehai - ge shall be p r ominently dis p layed 
at such office. Each licensee shall carry his pocket card on 
his person at all times while engaging in real estate brokerage 
and shall produce the card as proof of licensure whenever 
requested. 

(b) The principal broker of a firm shall retain the firm's 
annual license renewal pocket card at the firm and issued by 
the Commission to each licens ee shall produce it upon request 
as proof of t~irm be retained by the lic e nsee as evidence of 
licensure as required bx Rule .0502(e)(3) of this Subchapter. 

(c) Every licensed real estate business entity or firm shall 
prominenth' display its license certificate or facsimile thereof 
in each office maintained by the entity or firm. A broker-in- 
charge shall also prommentlv display his license certificate in 
the office where he is broker-in-charge of this Subchapter. 

Authohn G.S. 93A-3(c). 



(a) Every listing agreement, buyer agency agreement or 
other agreement for brokerage services in a real estate sales 
transaction shall be in writing, shall provide for its existence 
for a definite period of time and shall provide for its 
termination without prior notice at the expiration of that 
period. 

(b) Every listing agreement, buyer agency agreement or 
other agreement for brokerage services in a real estate sales 
transaction shall contain the following provision: The broker 
shall conduct all his brokerage activities in regard to this 
agreement without respect to the race, color, religion, sex, 
national origin, handicap or familial status of any buyer, 
prospective buyer, seller or prospective seller. The provision 
shall be set forth in a clear and conspicuous manner which 
shall distinguish it from other provisions of the agreement. 
For the purposes of this Rule, the term, familial status, shall 
be defined as it is in G.S. 41A-3(lb). 

(c) Every listing agreement, buyer agency agreement or 
other agreement for brokerage services in a real estate sales 
transaction shall incorporate the "Description of Agent Duties 
and Relationships" prescribed by the Commission which shall 
be set forth in a clear and conspicuous manner and shall not 
include or be accompanied by any additional text which 
contradicts its meaning and substance. The "Description of 
Agent Duties and Relationships" shall read as follows; 

DESCRIPTION OF AGENT DUTIES AND 
RELATIONSHIPS 



.0103 LICENSEE NAME AND ADDRESS 

Upon initial licensure and at all times thereafter, every 
licensee shall be responsible for assuring that the Commission 
has on record the licensee's current personal name, firm 
name, trade name, residence address and firm address. Even.' 
licensee All licensees shall notif,' the Commission in writing 
of each change of business addr e ss, re sid e nce address, o r 
t r ade name personal name, firm name, trade name, residence 
address and firm address within ten days of said change. All 
addresses The add r ess shall be sufficiently descriptive to 
enable the commission Commission to correspond with and 
locate the licensee. 

Authority G.S. 93A-3(c). 

.0104 AGENCY AGREEMENTS AND DISCLOSLTIE 



Before you begin working with any real estate agent, you 
should know who the agent represents in the transaction. 

Every listing agreement, buyer agency agreement or other 
agreement for brokerage services in a real estate sales 
transaction in North Carolina must contain this "Description 
of Agent Duties and Relationships" [N.C. Real Estate 
Commission Rule 21 NCAC 58A .0104(c), eff. 7/1/95]. Real 
estate agents should carefully review this information with 
you prior to entering into any agency agreement. 

AGENTS' DUTIES 

When you contract with a real estate firm to act as your agent 
in a real estate transaction, the agent must help you obtain the 
best price and terms possible, whether you are the buyer or 
seller. The agent also owes you the duty to; 



Safeguard and account for any money handled for you 

Be loyal and foUow reasonable and lawful instructions 

Act with reasonable skill, care and diligence 

Disclose to you any information which might influence your decision to buy or sell 



Even if the agent does not represent you. the agent must still 
be fair and honest and disclose to you all "material facts" 
which the agent knows or reasonably should know. A fact is 
"material" if it relates to defects or other conditions affecting 
the property, or if it ma\' influence your decision to buy or 



sell. This does not require a seller's agent to disclose to the 
buyer the minimum amount the seller will accept, nor does it 
require a buyer's agent to disclose to the seller the maximum 
price the buyer will pay. 



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AGENTS WORKING WITH SELLERS 

A seller can enter into a "listing agreement" with a real estate 
firm authorizing the firm and its agent(s) to represent the 
seller in finding a buyer for his property. The listing 
agreement should state what the seller will pay the listing 
firm for its services, and it may require the seller to pay the 
firm no matter who finds the buyer. 

The listing firm may belong to a listing service to expose the 
seller's property to other agents who are members of the 
service. Some of those agents may be working with buyers as 
buyers' agents; others will be working with buyers but still 
representing the sellers' interests as an agent or "subagent." 
When the buyer's agents and seller's subagents desire to share 
in the commission the seller pays to the listing firm, the 
listing agent may share the commission with the seller's 
permission. 

AGENTS WORKING WITH BUYERS 

A buyer may contract with an agent or firm to represent him 
(as a buyer's agent), or may work with an agent or firm that 
represents the seller (as a seller's agent or subagent). All 
parties in the transaction should find out at the beginning who 
the agent working with the buyer represents. 

If a buyer wants a buyer's agent to represent him in 
purchasing a property, the buyer should enter into a "buyer 
agency agreement" with the agent. The buyer agency 
agreement should state how the buyer's agent will be paid. 
Unless some other arrangement is made which is 
satisfactory to the parties, the buyer's agent will be paid 
by the buyer. Many buyer agency agreements will also 
obligate the buyer to pay the buyer's agent no matter who 
finds the property that the buyer purchases. 

A buyer may decide to work with a firm that is acting as 
agent for the seller (a seller's agent or subagent). If a buyer 
does not enter into a buyer agency agreement with the firm 
that shows him properties, that firm and its agents will show 
the buyer properties as an agent or subagent working on the 
seller's behalf. Such a firm represents the seller (not the 
buyer) and must disclose that fact to the buyer. 

A seller's agent or subagent must still treat the buyer fairly 
and honestly and disclose to the buyer all material facts which 
the agent knows or reasonably should know. The seller's 
agent typically will be paid by the seller. If the agent is 
acting as agent for the seller, the buyer should be careful 
not to give the agent any information that the buyer does 
not want the seller to know. 

DUAL AGENTS 

A real estate agent or firm may represent more than one party 
in the same transaction only with the knowledge and written 



consent of all parties for whom the agent acts. "Dual 
Agency" is most likely to occur when a buyer represented by 
a buyer's agent wants to purchase a property listed by that 
agent's firm. A dual agent must carefully explain to each 
party that the agent and the agent's firm are also acting for 
the other party. 

In some situations, the agents may practice a form of dual 
agency known as "designated agency:" an agent in a firm is 
designated to represent the interests of the seller, and another 
agent in the same firm is designated to represent the interests 
of the buyer. This form of dual agency allows the designated 
agent to more fully represent the interests of the party with 
whom the agent is working. 

In any dual agency situation, the agent must obtain a written 
agreement from the parties which fully describes the 
obligations of the agent and the agent's firm to each of them. 

Immediately after the "Description of Agent Duties and 
Relationships", every listing and buyer agency agreement 
shall contain the following provision, including a box which 
the agent shall check when the provision is applicable: " 
This firm represents both sellers and buyers. This means that 
it is possible that a buyer we represent will want to purchase a 
property owned by a seller we represent. When that occurs, 
the agent and firm listed above will act as dual agents if all 
parties agree." 

(d) A broker or brokerage firm representing one party in a 
transaction shall not undertake to represent another party in 
the transaction without the express, written authority of each 
party. 

(e) In every real estate sales transaction, a broker or 
salesman working directly with a prospective buyer as a 
seller's agent or subagent shall disclose to the prospective 
buyer at the first substantial contact with the prospective 
buyer that the broker or salesman represents the interests of 
the seller. The broker or salesman shall make the disclosure 
on the "Disclosure to Buyer from Seller's Agent or Subagent" 
form prescribed by the Commission. If the first substantial 
contact occurs by telephone or by means of other electronic 
communication where it is not practical to provide written 
disclosure, the broker or salesman shall immediately disclose 
by similar means whom he represents and shall immediately, 
but in no event later than three days from the date of first 
substantial contact, mail or otherwise transmit a copy of the 
form to the buyer. 

(f) In every real estate sales transaction, a broker or 
salesman representing a buyer shall, at the initial contact with 
the seller or seller's agent, disclose to the seller or seller's 
agent that the broker or salesman represents the buyer's 
interests. In addition, in every real estate sales transaction 
other than auctions, the broker or salesman shall, no later 
than the time of delivery of an offer to the seller or seller's 
agent, provide the seller or seller's agent with a written 
confirmation disclosing that he represents the interests of the 



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PROPOSED RULES 



buyer. The written confirmation may be made in the buyer's 
offer to purchase. 

(g) The provisions of Paragraphs (c), (d) and (e) of this 
Rule shall not apply to real estate licensees representing 
sellers in auction sales transactions. 

(h) A broker or salesman representing a buyer in an 
auction sale transaction shall, no later than the time of 
execution of a written agreement memorializing the buyer's 
contract to purchase, provide the seller or seller's agent with 
a written confirmation disclosing that he represents the 
interests of the buyer. The written confirmation may be made 
in the written agreement. 

(i) A firm which represents both the buyer and the seller in 
the same real estate sales transaction is a dual agent and 
through the brokers and salesmen associated with the firm 
shall disclose its dual agency to the buyer and seller. 

(j) When a firm represents both the buyer and seller in the 
same real estate sales transaction, the firm may, with the prior 
written approval of its buyer and seller clients, designate one 
or more individual brokers or salesmen associated with the 
firm to represent only the interests of the seller and one or 
more other individual brokers and salesmen associated with 
the firm to represent only the interests of the buyer in the 
transaction. An individual broker or salesman shall not be so 
designated and shall not undertake to represent only the 
interests of one party if the broker or salesman has actually 
received confidential information concerning the other party 
in connection with the transaction. A broker-in-charge shall 
not act as a designated agent for a party in a real estate sales 
transaction when a salesman tmder his supervision will act as 
a designated agent for another party with a competing 
interest. 

(k) When a firm acting as a dual agent designates an 
individual broker or salesman to represent the seller, the 
broker or salesman so designated shall represent only the 
interest of the seller and shall not, without the seller's 
permission, disclose to the buyer or a broker or salesman 
designated to represent the buyer: 

(1) that the seller may agree to a price, terms, or any 
conditions of sale other than those established by 
the seller; 

(2) the seller's motivation for engaging in the 
transaction unless disclosure is otherwise required 
by statute or rule; and 

(3) any information about the seller which the seller 
has identified as confidential unless disclosure of 
the information is otherwise required by statute or 
rule. 

(1) When a firm acting as a dual agent designates an 
individual broker or salesman to represent the buyer, the 
broker or the salesman so designated shall represent only the 
interest of the buyer and shall not, without the buyer's 
permission, disclose to the seller or a broker or salesman 
designated to represent the seller: 

(1) that the buyer may agree to a price, terms, or any 
conditions of sale other than those offered by the 
buyer; 



(2) the buyer's motivation for engaging in the 
transaction unless disclosure is otherwise required 
by statute or rule; and 

(3) any information about the buyer which the buyer 
has identified as confidential unless disclosure of 
the information is otherwise required by statute or 
rule. 

(m) A broker or salesman designated to represent a buyer 
or seller in accordance with Paragraph ij) tb) of this Rule 
shall disclose the identity of all of the brokers and salesmen 
so designated to both the buyer and the seller. The disclosure 
shall take place no later than the presentation of the first offer 
to purchase or sell. 

(n) When an individual broker or salesman represents both 
the buyer and seller in the same real estate sales transaction 
pursuant to a written agreement authorizing dual agency, the 
parlies may provide in the written agreement that the broker 
or salesman shall not disclose the following information about 
one party to the other without permission from the party 
about whom the information pertains: 

(1) that a party may agree to a price, terms or any 
conditions of sale other than those offered: 

(2) the motivation of a party for engaging in the 
transaction, unless disclosure is otherwise required 
by statute or rule; and 

(3) any information about a pany which that party has 
identified as confidential, unless disclosure is 
otherwise required by statute or rule. 

Authority G.S. 41A-3(lb); 93A-3(c). 

.0105 ADVERTISING 

(a) Blind Ads. A licensee shall not advertise the sale, 
purchase, exchange, rent or lease of real estate, for another or 
others, in a manner indicating the offer to sell, purchase, 
exchange, rent, or lease is being made by the licensee's 
principal. Every such advertisement shall clearly indicate 
that it is the advertisement of a broker or brokerage firm and 
shall not be confined to publication of only a post office box 
number, telephone number, or street address. 

(b) Registration of Assumed Name. In the event that any 
licensee shall advertise in any manner using a firm name or 
an assumed name which does not set forth the surname of the 
licensee, he shall first file the appropriate certificate with the 
office of the county register of deeds in compliance with G.S. 
66-68 and notify the Commission in writing of the use of 
such a firm name or assumed name, and furnish — the 



eoT 



Mnmission with a co p y of e ach ce r tificate filed with the 
office of the county re gist er of deeds in compliance with G.S. 
66-6&T 

(c) Authority to Advertise. 

(1) A salesman shall not advertise the sale, purchase, 
exchange, rent or lease of real estate for another or 
others without his broker's consent and without 
including in the advertisement the name of the 
broker or firm with whom he is associated. 

(2) A licensee shall not advertise or display a for sale 



1162 



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PROPOSED RULES 



or for rent sign on any real estate without the 

consent of the owner or his authorized agent. 

(d) Business names. A licensee shall not include the name 

of a salesman or an unlicensed person in the name of a sole 

proprietorship, partnership or non-corporate business formed 

for the purpose of real estate brokerage. 

Authority G.S. 55B-5; 66-68; 93A-3(c). 

.0107 HANDLING AND ACCOUNTING OF FUNDS 

(a) All monies received by a broker acting in his fiduciary 
capacity shall be deposited in a trust or escrow account not 
later than three banking days following receipt of such 
monies except that earnest money deposits paid by means 
other than currency which are received on offers to purchase 
real estate and tenant security deposits paid by means other 
than currency which are received in connection with real 
estate leases shall be deposited in a trust or escrow account 
not later than three banking days following acceptance of 
such offer to purchase or lease; the date of acceptance of such 
offer to purchase or lease shall be set fonh in the purchase or 
lease agreement. All monies received by a salesman shall be 
delivered immediately to the broker by whom he is employed. 

(b) In the event monies received by a broker while acting 
in a fiduciary capacity are deposited in a trust or escrow 
account which bears interest, such broker shall first secure 
from all parties having an interest in the monies written 
authorization for the deposit of such monies in an interest- 
bearing account. Such authorization shall specify how and to 
whom the interest will be disbursed, and, if contained in an 
offer, contract, lease, or other transaction instrument, such 
authorization shall be set forth in a clear and conspicuous 
manner which shall distinguish it from other provisions of the 
instrument. 

(c) Closing statements shall be furnished to the buyer and 
the seller in the transaction at the closing or not more than 
five days after closing. 

(d) Trust or escrow accounts shall be so designated by the 
bank or savings and loan association in which the account is 
located, and all deposit tickets and checks drawn on said 
account as well as the monthly bank statement for the account 
shall bear the words "Trust Account" or "Escrow Account". 

(e) A broker shall maintain and retain records sufficient to 
verify the accuracy and proper use of his trust or escrow 
accounts, including, but not limited to: 

(1) bank statements; 

(2) canceled checks which shall be referenced to the 
corresponding transaction or owner ledger sheet; 

(3) deposit tickets and, if necessary, a supplemental 
worksheet for each deposit ticket identifying the 
property and the parties to each transaction for 
which funds are deposited; 

(4) a separate ledger sheet for each sales transaction 
and for each owner of propeny managed by the 
broker identifying the propeny, the parties to the 
transaction, the amount, date, and purpose of the 
deposits and from whom received, the amount. 



date, check number, and purpose of disbursements 
and to whom paid, and the running balance of 
funds on deposit for the particular transaction or 
owner of property; 

(5) a journal or check stubs identifying each transaction 
and showing a miming balance for all funds in the 
account; 

(6) copies of contracts, leases and management 
agreements; 

(7) closing statements and property management 
statements; and 

(8) any other documents necessary and sufficient to 
verify and explain record entries. 

A broker shall maintain records of all receipts and disburse- 
ments of trust or escrow monies in such a manner as to create 
a clear audit trail from deposit tickets and canceled checks to 
check stubs or journals and to the ledger sheets. A broker 
must reconcile ledger sheets and his journals or check stubs to 
the trust or escrow account bank statements on a monthly 
basis. A broker shall create a worksheet for each such 
monthly reconciliation and retain it as part of his records. 

(0 All trust or escrow account records shall be made 
available for inspection by the Commission or its authorized 
representatives in accordance with Rule 58A .0108. 

(g) In the event of a dispute between the seller and buyer 
or landlord and tenant over the return or forfeiture of any 
deposit other than a residential tenant security deposit held by 
a broker, the broker shall retain said deposit in his trust or 
escrow account until he has obtained a written release from 
the parties consenting to its disposition or until disbursement 
is ordered by a court of competent jurisdiction. If it appears 
to a broker holding a disputed deposit that a party has 
abandoned his claim, the broker may disburse the money to 
the other claiming parties according to their written 
agreement provided that the broker first makes a reasonable 
effort to notify the party who has apparently abandoned his 
claim and provides that party with an opportunity to renew 
his claim to the disputed funds. 

(h) A broker may transfer earnest money deposits in his 
possession collected in coimection with a sales transaction to 
the closing attorney or other settlement agent not more than 
ten days prior to the anticipated settlement date. A broker or 
salesman shall not disburse prior to settlement any earnest 
money in his possession for any other purpose without the 
written consent of the parties. 

(i) The funds of a property owner association, when 
collected, maintained or disbursed by a licensee of the 
Commission, are trust monies and shall be treated as such in 
the manner required by this Rule. 

IjJ Every broker or salesman shall safeguard the money or 
property of others coming into his possession in a manner 
consistent with the requirements of the Real Estate License 
Law and the rules promulgated by the Commission. A 
licensee shall not convert the money or property of others to 
his own use, apply such money or property to a purpose other 
than that for which it was paid or entrusted to him, or permit 
or assist any other person in the conversion or misapplication 



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January 2, 1998 



1163 



PROPOSED RULES 



of such money or property. 
Authority G.S. 93A-3(c). 

.0108 RETENTION OF RECORDS 

Licensees Broke r s shall retain records of all transactions 
conducted in such capacity for a period of three years, years. 
whether the transaction is pending, completed or terminated 
prior to its successful conclusion. Such records shall include 
contracts of sale, written leases, agency listing contracts, 
options, offers to purchase, trust or escrow records, earnest 
money receipts, disclosure documents, closing statements and 
any other records pertaining to real estate transactions. All 
such records shall be made available for inspection by the 
Commission or its authorized representatives without prior 
notice. 

Authority G.S. 93A-3(c). 

.0109 BROKERAGE FEES AND COMPENSATION 

(a) A licensee shall not receive, either directly or 
indirectly, any commission, rebate or other valuable 
consideration from a vendor or a supplier of goods and 
services for an expenditure made on behalf of his principal in 
a real estate transaction without the written consent of the 
licensee's principal. 

(b) A licensee shall not receive, either directly or 
indirectly, any commission, rebate or other valuable 
consideration for services which he recommends, procures, or 
arranges relating to a real estate transaction for any party, 
without full disclosure to such party; provided, however, that 
nothing in this Rule shall be construed to permit a licensee to 
accept any fee, kickback or other valuable consideration that 
is prohibited by the Real Estate Settlement Procedures Act of 
1974 (12 use 2601 et. seq.) or any rules and regulations 
promulgated by the United States Department of Housing and 
Urban Development pursuant to such Act. 

(c) The Commission is not a Board of Arbitration and has 
no jurisdiction to settle disputes between parties concerning 
such matters as the rate of commissions, the division of 
commissions, pay of salesmen, and similiar matters. 

(d) A licensee shall not undertake in any manner, any 
arrangement, contract, plan or other course of conduct, to 
compensate or share compensation with unlicensed persons or 
entities for any acts performed in North Carolina for which 
licensure by the Commission is required. 

Authority G.S. 93A-3(c). 

.0110 BROKER-IN-CHARGE 

(a) Every real estate firm shall designate ortc a broker to 
serve as the broker-in-charge at its principal office and a 
broker to serve as broker-in-charge at any each of the firm's 
branch offices, office. No broker shall be broker-in-charge 
of more than one office or branch office. If a firm shares 
office space with one or more other firms, one broker may 
serve as broker-in-charge of each firm at that location. No 



office or branch office of a firm shall have more than one 
designated broker-in-charge. A broker practicing alone shall 
designate himself as a broker-in-charge. Each broker-in- 
charge shall make written notification of his status as broker- 
in-charge to the Commission on a form prescribed by the 
Commission within 10 days following the broker's 
designation as broker-in-charge. The broker-in-charge shall 
assume the responsibility at his office for: 

(1) the pr o p e r dis p lay of license ce r tificates of the 
brok e rs and salesmen associa t ed with o r engaged on 
behalf of the firm at such office, the retention and 
display of current license renewal pocket cards by 
all brokers and salesmen employed at the office for 
which lie is broker-in-charge: the proper display of 
licenses at such office in accordance with Rule 
.0101 of tliis Subchapter: and assuring that each 
licensee employed at the office has complied with 
Rules .0503, .0504 and .0506 of this Subchapter; 

(2) the proper notification to the Commission of any 
change of business address or trade name of the 
firm and the registration of any assumed business 
name adopted by the firm for its use; 

(3) the proper conduct of advertising by or in the name 
of the firm at such office; 

(4) the proper maintenance at such office of the trust or 
escrow account of the firm and the records 
pertaining thereto; 

(5) the proper retention and maintenance of records 
relating to transactions conducted by or on behalf 
of the firm at such office ; office, including those 
required to be retained pursuant to Rule .0108 of 
this Subchapter: 

(6) the proper supervision of salesmen associated with 
or engaged on behalf of the firm at such office in 
accordance with the requirements of Rule .0506 of 
this Subchapter; and 

(7) the verification to the Commission of the 
experience of any salesman at such office who may 
be applying for licensure as a broker. 

(b) When used in this Rule, the term: 

(1) "Branch Office" means any office in addition to the 
principal office of a broker which is operated in 
connection with the broker's real estate business; 
and 

(2) "Office" means any place of business where acts are 
performed for which a real estate license is 
required. 

(c) A broker-in-charge must continually maintain his 
license on active status. 

(d) Each broker-in-charge shall notify the Commission in 
writing of any change in his status as broker-in-charge within 
ten days following the change. Upon written request of a 
salesman within 5 years after termination of Ins association 
with a broker-in-charge. With i n — H3 — days — following 
termination of his — su p e r viso r y — r es p onsibilities ove r — any 
sal e sman, the broker-in-charge shall provide the salesman, in 
a form prescribed by the Commission, an accurate written 



1164 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



PROPOSED RULES 



No Repre- 
Yes* No sentation 



3. 

4. 
5. 
6. 



9. 



10. 



11. 
12. 



FOUNDATION, SLAB, FIREPLACES/CHIMNEYS, FLOORS, WINDOWS (INCLUDING 
STORM WINDOWS AND SCREENS), DOORS, CEILINGS, INTERIOR AND 
EXTERIOR WALLS, GARAGE, DRIVEWAY AND SIDEWALKS, OUTSIDE FENCES, 
PATIO, DECK OR OTHER STRUCTURAL COMPONENTS and any modifications to 
them? □ □ 

a. Siding is D Masonry D Wood D Masonite D Vinyl D Synthetic Stucco 

D Other 

b. Age of Structure? 

ROOF (leakage or other problem)? D 

a. Age of roof covering? 

BASEMENT, CRAWL SPACE OR SLAB (including water seepage, leakage, dampness or 
standing water)? D 

ELECTRICAL SYSTEM (outlets, wiring, panel, etc.)? D 

PLUMBING SYSTEM (pipes, fixtures, etc.)? D 

HEATING AND AIR CONDITIONING? D 

a. Heat Source is: D Furnace D Heat Pump D Baseboard D Other .... 

b. Fuel Source is: D Electricity D Natural Gas D Propane D Oil D Other 

WATER SUPPLY (including water quality and water pressure)? D 

a. Water supply is: D City /County D Community System D Private Well 
D Other 

b. Water pipes are: D Copper D Galvanized D PVC (plastic) 

SEWER SYSTEM? D 

a. Sewerage disposal system is: D Septic Tank D Community SystemD Connected to 
City /County System D City/County System available D Other . . . 

APPLIANCES included in sale: RANGE/OVEN, MICROWAVE, HOOD/FAN, 
DISHWASHER, DISPOSAL, REFRIGERATOR, WASHER/DRYER, TRASH 
COMPACTOR, WINDOW OR IN-WALL AIR CONDITIONER, OR OTHER 
APPLIANCES? n D 

OTHER SYSTEMS AND FIXTURES: T.V. ANTENNA, CABLE WIRING OR 
SATELLITE DISH, CENTRAL VACUUM, POOL, ATTIC FAN, EXHAUST FAN, 
CEILING FAN, WATER HEATER, SUMP PUMP, IRRIGATION SYSTEM, OR OTHER D 

SYSTEMS? D 

DRAINAGE, GRADING OR SOIL STABILITY OF LOT? D D 

WOOD-DESTROYING INSECTS (Present infestation or damage from past infestation which 





a 


D 


D 




D 


D 


D 


a 


D 


D 


D 


n 


D 




n 




D 


n 


n 




D 




D 


D 


D 



D 



NORTH CAROLINA REGISTER 



January 2, 1998 



1167 



PROPOSED RULES 



has not been repaired)? 

Also regarding the property identified above, are you aware of any: 

13. ROOM ADDITIONS OR OTHER STRUCTURAL CHANGES (including separate 
structures)? 

14. ENVIRONMENTAL HAZARDS (substances, materials or products) including asbestos, 
formaldehyde, radon gas, methane gas, lead-based paint, underground storage tank, or other 
hazardous or toxic material (whether buried or covered), contaminated soil or water, or other 
environmental contamination)? 

15. ENVIRONMENTAL NUISANCES (noise, odor, smoke, etc.) affecting the property? . . . 

16. NON-CONFORMING USE OR VIOLATIONS OF LOCAL, STATE OR FEDERAL 
LAWS, BUILDING CODES, ZONING ORDINANCES, RESTRICTIVE COVENANTS OR 
OTHER LAND-USE RESTRICTIONS? 



D 



D 



D 
D 

D 



n 



n 



D 



n 
n 

n 



17. ENCROACHMENTS FROM OR TO ADJACENT PROPERTY, UTILITY OR OTHER 
EASEMENTS, SHARED DRIVEWAYS, PARTY WALLS or similar matters that could 

affect title to the property? D D 

18. LAWSUITS, FORECLOSURES, BANKRUPTCY, DIVORCE ACTIONS, JUDGMENTS, 
TAX LIENS, PROPOSED ASSESSMENTS, MECHANICS' LIENS, MATERIALMENS' 
LIENS OR NOTICE FROM ANY GOVERNMENTAL AGENCY that could affect title to 

the property? D D 

19. HOMEOWNERS' ASSOCIATION OR "COMMON AREA" EXPENSES OR 
ASSESSMENTS^ D D 

20. Evidence that the propeny is located in a FEDERALLY-DESIGNATED FLOOD PLAIN or 

that it has ever been damaged by flooding? D D 



D 



* If you answered "Yes" to any of the above questions, please explain (Attach additional sheets, if necessary): 

(b) The form described in Subsection (a) above may be reproduced, but the form shall not be altered or amended in any 
way. 

Authorin G.S. 47E-4(b): 93A-3(c); 93A-6. 



SECTION .0300 - APPLICATION FOR LICENSE 

.0302 FILING AND FEES 

(a) Completed applications must be received in the 
Commission's office or postmarked not later than the filing 
date established by the executive director for a scheduled 
examination and must be accompanied by the appropriate fee. 
A filing date shall be no more than 40 days prior to a 
scheduled examination. Once the application has been filed 
and processed, the application fee may not be refunded. 

(b) The following fees shall be charged: 

(1) application for new broker license S30.00, 

(2) application for new salesman license .... S30.00. 
For the purposes of this Section, the term, broker, shall refer 
to both an individual and a business entity. 



(c) An applicant shall update information provided in 
connection with an application or submit a newly completed 
application form without request by the Commission to assure 
that the information provided in the application is complete 
and accurate. Failure to submit updated information prior to 
the issuance of a license ma\' result in disciplinary action 
against a licensee in accordance with G.S. 93A-6(b)( 1). In 
the e\ent that the Commission requests an applicant to submit 
updated information and the applicant fails to submit such 
information within 60 da\s following the Commission's 
request, the Commission shall cancel the applicant's 
application. 

Authorin- G.S. 93A-4(a),(d). 



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PROPOSED RULES 



SECTION .0500 - LICENSING 

.0502 BUSINESS ENTITIES 

(a) Every business entity other than a sole proprietorship 
shall apply for and obtain from the Commission a firm license 
prior to engaging in business as a real estate broker. An 
entity which changes its business form shall be required to 
submit a new application immediately upon making the 
change and to obtain a new license. Incomplete applications 
shall not be acted upon by the Commission. Application 
forms for partnerships, corporations, limited liability 
companies, associations and other business entities required 
to be licensed as brokers shall be available upon request to the 
Commission and shall set forth the name of the entity, the 
name under which the entity will do business, the address of 
its principal office, and a list of all brokers and salesmen 
associated with the entity. 

(1) The application of any partnership, including a 
general partnership, limited partnership and limited 
liability partnership, shall also call for such 
information as a copy of its written partnership 
agreement or if no written agreement exists, a 
written description of the rights and duties of the 
several partners; a copy of any Certificate of 
Limited Partnership as may be required by law; 
past conviction of criminal offenses of any general 
or limited partner; past revocation, suspension, or 
denial of a business or professional license of any 
general or limited partner; and the name and 
residence address of each general and limited 
partner. 

(2) The application of a limited liability company shall 
also call for such information as a copy of its 
Articles of Organization evidencing its authority to 
engage in the business of real estate brokerage; past 
conviction of criminal offenses of any manager or 
member; past revocation, suspension, or denial of a 
business or professional license of any manager or 
member; and the name and residence address of 
each manager or member. 

(3) The application of a corporation shall also call for 
such information as a copy of its Articles of 
Incorporation evidencing its authority to engage in 
the business of real estate brokerage; and shall call 
for such information as past conviction of criminal 
offenses of any corporate director, officer, 
employee or shareholder who owns ten percent or 
more of the outstanding shares of any class; past 
revocation, suspension, or denial of a business or 
professional license to any director, officer, 
employee or shareholder who owns ten percent or 
more of the outstanding shares of any class; the 
name and residence address of each director and 
officer of the corporation; and the name and 
address of each person, partnership, corporation, or 
other entity owning ten percent or more of the 
outstanding shares of any class. 



(4) The application of any other business entity shall 
also call for such information as a copy of its 
organizational documents evidencing its authority 
to engage in real estate brokerage; past conviction 
of criminal offenses of any principal in the 
company; past revocation, suspension or denial of a 
business or professional license of any principal; 
and the name and residence address of each 
principal. For purposes of this Paragraph, the term 
principal shall mean any person or entity who 
owns the business entity to any extent, or who is an 
officer, director, manager, member, partner or who 
holds any other comparable position. 

(b) A foreign business entity shall further qualify by filing 
with its application for license a copy of any certificate of 
authority to transact business in this state issued by the North 
Carolina Secretary of State which may be required by law and 
a consent to service of process and pleadings which shall be 
accompanied by a duly certified copy of the resolution of the 
general partners, managers or board of directors authorizing 
the proper partner, manager or officer to execute said 
consent. 

(c) After filing a written application with the Commission 
and upon a showing that at least one principal of said business 
entity holds a broker's broker license on active status and in 
good standing and will serve as principal broker of the entity, 
the entity shall be licensed provided it appears that the 
[a p plican t ] applicant entity employs and is directed by 
personnel possessed of the requisite truthfulness, honesty, and 
integrity. The principal broker of a partnership of any kind 
must be a general partner of the partnership, the principal 
broker of a limited liability company must be a manager of 
the company, and the principal broker of a corporation must 
be an officer of the corporation. A licensed business entity 
may serve as the principal broker of another licensed business 
entity if the principal broker-entity has has its principal 
broker a natural person who is himself licensed as a broker. 
The natural person who is principal broker shall assure the 
performance of the principal broker's duties with regard to 
both entities. 

(d) The licensing of a business entity shall not be 
construed to extend to the licensing of its partners, managers, 
members, directors, officers, employees or other persons 
acting for the entity in their individual capacities regardless of 
whether they are engaged in furthering the business of the 
licensed entity. 

(e) The principal broker of a business entity shall assume 
responsibility for: 

(1) designating and assuring that there is at all times a 
broker-in-charge for each office and branch office 
of the entity at which real estate brokerage 
activities are conducted; 

(2) renewing the real estate broker license of the entity; 

(3) the — p roper — dis p lay — of th e — real — estate — licens e 
certificate of the e ntity retaining the firm's renewal 
pocket card at the firm and producing it as proof 
pr inci p al offic e of firm licensure upon request the 



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1169 



PROPOSED RULES 



entity at which re al es t a t e broke r age ac t ivities are 
cnnduc t ed and maintaining a photocopy of the firm 
strch license certificate and pocket card at each 
branch office thereof; 

(4) notifying the Commission of any change of 
business address or trade name of the entity and the 
registration of any assumed business name adopted 
by the entity for its use; and 

(5) notifying the Commission in writing of any change 
of his status as principal broker within ten days 
following the change. 

(0 Every licensed business entity and every entity 
applying for licensure shall conform to all the requirements 
imposed upon it by the North Carolina General Statutes for 
its continued existence and authority to do business in North 
Carolina. Failure to conforming conform to such 
requirements shall be grounds for disciplinary action or denial 
of the entity's application for licensure. Upon receipt of 
notice from an entity or agency of this state that a licensed 
entity has ceased to exist or that its authority to engage in 
business in this state has been terminated by operation of law, 
the Commission shall cancel the license of the entity. 



(S30.00) fee. Applicants must satisfy the same requirements 
as those prescribed in Paragraph (b) of this Rule for 
reinstatement of licenses expired for more than 12 months. 

(d) Reinstatement of a license surrendered under the 
provisions of G.S. 93A-6(e) may be considered upon 
termination of the period of surrender specified in the order 
approving the surrender and upon proper application and 
payment of a thirty dollar ($30.00) fee. Applicants must 
satisfy the same requirements as those prescribed in 
Paragraph (b) of this Rule for reinstatement of licenses 
expired for more than 12 months. 

(e) When a license is suspended by the C o mmission 
ex p i re s. Commission, the suspended license shall may be 
r eins t ated restored at the end of the period of active 
suspension suspension: u p on p ayment of the license r enewal 
f e e fo r the cu rre nt license period; however, in order for the 
license to be re instat e d restored on active status, the licensee 
shall be required, to also demonstrate that he has satisfied the 
continuing education requirement for license activation 
prescribed by Rule .1703 of this Subcha p t er . Subchapter and 
is supervised by a broker-in-charge in compliance with the 
requirements of Rule .0506 of this Subchapter, if applicable. 



Authority G.S. 93A-3(c); 93A-4(a). (b), (d). 



Authority G.S. 93A-3(c); 93A-4(c). (d); 93A-4A. 



.0505 REINSTATEMENT OF EXPIRED LICENSE, 
REVOKED, SURRENDERED OR SUSPENDED 
LICENSE 

(a) Licenses expired for not more than 12 months may be 
reinstated upon proper application and payment of the thirty 
dollar (S30.00) renewal fee plus five dollar ($5.00) late filing 
fee. In order to reinstate such license on active status, the 
applicant shall also present evidence satisfactory to the 
Commission of having obtained such continuing education as 
is required by Rule .1703 of this Subchapter to change an 
inactive license to active status. A person reinstating such a 
license on inactive status shall not be required to have 
obtained any continuing education in order to reinstate such 
license; however, in order to subsequently change his 
reinstated license from inactive status to active status, the 
licensee must satisfy the continuing education requirement 
prescribed in Rule .1703 of this Subcha p t er . Subchapter, and 
be supervised by a broker-in-charge in compliance with the 
requirements of Rule .0506 of this Subchapter. 

(b) Reinstatement of licenses expired for more than 12 
months may be considered upon proper application and 
payment of a thiny dollar ($30.00) fee. Applicants must 
satisfy the Commission that they possess the current 
knowledge, skills and competence, as well as the truthfulness, 
honesty and integrity, necessary to function in the real estate 
business in a manner that protects and serves the public 
interest. To demonstrate current knowledge, skills and 
competence, the Commission may require such applicants to 
complete real estate education or pass the license examination 
or both. 

(c) Reinstatement of a revoked license may be considered 
upon proper application and payment of a thirty dollar 



.0506 SALESMAN TO BE SUPERVISED BY 
BROKER 

(a) A salesman may engage in or hold himself out as 
engaging in activities requiring a real estate license only 
while his license is on active status and he is supervised by 
the broker-in-charge of the real estate firm or office where the 
salesman is associated. A salesman may be supervised by 
only one broker-in-charge at a time. 

(b) Upon a salesman's association with a real estate broker 
or brokerage firm, the salesman and the broker-in-charge of 
the office where the salesman will be engaged in the real 
estate business shall immediately file with the Commission a 
salesman supervision notification on a form prescribed by the 
Commission containing identifying information about the 
salesman and the broker-in-charge, a statement from the 
broker-in-charge certifying that he will supervise the 
salesman in the performance of all acts for which a license is 
required, the date that the broker-in-charge assumes 
responsibility for such supervision, and the signatures of the 
salesman and broker-in-charge. If the salesman is on inactive 
status at the time of associating with a broker or brokerage 
firm, the salesman and broker-in-charge shall also file, along 
with the salesman supervision notification, the salesman's 
request for license activation on a form prescribed by the 
Commission containing identifying information about the 
salesman, the salesman's statement that he has satisfied the 
continuing education requirements prescribed by Rule .1703 
of this Subchapter, the date of the request, and the signatures 
of the salesman and the salesman's proposed broker-in- 
charge. Upon the mailing or delivery of the required 
form(s), the salesman may engage in real estate brokerage 
activities requiring a license under the supervision of the 



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PROPOSED RULES 



broker-in-charge; however, if the salesman and broker-in- 
charge do not receive from the Commission a written 
acknowledgment of the salesman supervision notification and, 
if appropriate, the request for license activation, within 30 
days of the date shown on the form, the broker-in-charge 
shall immediately terminate the salesman's real estate 
brokerage activities pending receipt of the written 
acknowledgment from the Commission. If the salesman and 
broker-in-charge are notified that the salesman is not eligible 
for license activation due to a continuing education 
deficiency, the broker-in-charge shall cause the salesman to 
immediately cease all activities requiring a real estate license 
until such time as the continuing education deficiency is 
satisfied and a new salesman supervision notification and 
request for license activation is submitted to the Commission. 

(c) A broker-in-charge who certifies to the Commission 
that he will supervise a licensed salesman shall actively and 
personally supervise the salesman in a manner which 
reasonably assures that the salesman performs all acts for 
which a real estate license is required in accordance with the 
Real Estate License Law and Commission rules. A 
supervising broker who fails to supervise a salesman as 
prescribed in this Rule may be subject to disciplinary action 
by the Commission. 

fd) — Upon termina t ion of his su p e r vision of a salesman, a 
broker-in-charge shall immediately: 

(i^ n ot i f y the Commission in w r iting s ett ing fo rt h the 

da te of te rmina t ion; and 



m- 



the salesman. 



-gnr- 
Commission 



-an- 



iii a foim pusciibed by the 
accu r a te — written — s t atem e n t 



regarding the numbe r and t y pe of pr ope rt ies listed, 
sold, bought, leased o r r ented for o t he r s by the 
salesman while under the supervision of t he broker- 
in-charg e . 
(d) Upon the termination of the supervisory relationship 
between a salesman and his broker-in-charge. the salesman 
and the broker-in-charge shall provide written notification of 
the date of termination to the Commission not later than 10 
days following said termination. 



writing. 

(c) When a complaint is not verified by the person making 
the complaint, the Commission, through its legal counsel may 
consider the complaint on its own motion. 

(d) There shall be no specific forms required for answers, 
motions, or other pleadings relating to contested cases before 
the Commission, except they shall be in writing. To be 
sufficient, the document must reasonably apprise the 
Commission of the matters it alleges or answers. To be 
considered by the Commission, every answer, motion, 
request or other pleading must be submitted to the 
Commission in writing or made during the hearing as a 
matter of record. 

(e) When the Commission, upon its own motion or upon 
the complaint of any person, commences an investigation of a 
licensee, the Commission may send the licensee a Letter of 
Inquiry requesting the licensee to respond. The Letter of 
Inquiry, or attachments thereto, shall set forth the subject 
matter being investigated. Upon receipt of the Letter of 
Inquiry, the licensee shall respond to the Commission within 
14 calendar days. Such response shall include a fuH and fair 
disclosure of all information requested. Licensees shall 
include with their written response copies of all documents 
requested by the Commission in the Letter of Inquiry. 

ie) £jQ Hearings in contested cases before the Commission 
shall be conducted according to the provisions of Article 3A 
of Chapter 150B of the General Statutes of North Carolina. 

iff igi Persons who make complaints are not parties to 
contested cases, but may be witnesses. 

Authority G.S. 93A-6(a); 150B-38(h). 

.0613 SCOPE 

— The provisions of this Sec t ion shall a pp ly to con t es te d cas e s 
heard by t he Real Esta t e Commision only and shall not apply 
to h e arings conducted by the Real Estate Appraisal Doaid 
p ursuan t t o Article 5 of Cha pt e r 9 3 A o f t he Gene r al Statutes. 

Authority G.S. 93A-3(c). 



Authority G.S. 93A-2(b); 93A-3. 

SECTION .0600 - REAL ESTATE COMMISSION 
HEARINGS 

.0601 COMPLAINTS/INQUIRIES/ 

MOTIONS/OTHER PLEADINGS 

(a) There shall be no specific form required for 
complaints. To be sufficient, a complaint shall be in writing, 
identify the respondent licensee and shall reasonably apprise 
the Commission of the facts which form the basis of the 
complaint. 

(b) When investigating a complaint, the scope of the 
Commission's investigation shall not be limited only to 
matters alleged in the complaint. In addition, a person 
making a complaint to the Commission may change his 
complaint by submitting the changes to the Commission in 



.0614 SUMMARY SUSPENSION 

(a) If the Commission finds that the public health, safety. 
or welfare requires emergency action, it may, pursuant to 
G.S. 150B-3(c). summarily suspend a license without a 
hearing or opportunity for the licensee to be heard. A motion 
for summary suspension shall be presented to the Chairman of 
the Commission by counsel for the State and may be 
presented ex parte. The motion shall be supported by an 
affidavit of a person with first-hand knowledge of the facts 
alleged which require emergency action. 

(b) The Commission shall, when it summarily suspends a 
license, immediately schedule a hearing, to occur at the 
earliest practicable date, on the merits of the charges set out 
in a notice of hearing issued contemporaneously with the 
order of summary suspension. The motion, supporting 
affidavit, order for summary suspension and notice of hearing 
shall be served on the licensee as soon as possible and the 



12:13 



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1171 



PROPOSED RULES 



summary suspension shall be effective no earlier than the date 
of service of the summary' suspension order on the licensee. 
The order of summary suspension shall remain in effect until 
the Commission vacates iL 

(c) A summarily suspended licensee may petition the 
Commission to vacate the summary suspension order. If the 
Chairman of the Commission finds that the summary 
suspension order was issued in error or on insufficient factual 
grounds to justify' emergency action, the Chairman of the 
Commission may vacate the summary suspension order. 

(d) Neither an order of summary suspension nor a denial 
of a motion to vacate an order of summary suspension is a 
final agency decision. 

Aiahonn- G.S. 93A-6(a>; 150B-3(c). 



SECTION .0400 - TIME SHARE SALES OPERATIONS 

.0402 TIME SHARE AGENCY AGREEMENTS AND 
DISCLOSURE 

Time share sales transactions conducted by licensees on 
behalf of a time share developer are subject to 21 NCAC 58A 
.0104. 

Authority G.S. 93A-3(c); 93A-51. 

SUBCHAPTER 58E - REAL ESTATE CONTINUING 
EDUCATION 

SECTION .0400 - GENERAL SPONSOR 
REQUIREMENTS 



SECTION .1700 



MANDATORY CONTINUING 
EDUCATION 



. 1 702 CONTINUING EDUC ATION REQUIREMENT 

(a) In order to renew a broker or salesman license on 
active status, the person requesting renewal of a license shall, 
upon the second renewal of such license following initial 
licensure, and upon each subsequent annual renewal, have 
completed, within one year preceding license expiration, 
eight classroom hours of real estate continuing education in 
courses approved by the Commission. Four of the required 
eight classroom hours must be obtained each license period 
by completing a mandatory update course developed armually 
by the Commission. The remaining four hours must be 
obtained by completing one or more Commission-approved 
elective courses described in Rule .0305 of Subchapter 58E. 
The licensee bears the responsibility for providing, upon 
request of the Commission, evidence of continuing education 
course completion satisfactory to the Commission. 

(b) No continuing education shall be required to renew a 
broker or salesman license on inactive status; however, to 
change a license from inactive status to active status, the 
licensee must satisfy the continuing education requirement 
described in Rule .1703 of this Section. 

(c) No continuing education shall be required for a 
licensee who is a member of the North Carolina General 
Assembly to renew his license on active status. 

(d) The terms "active status" and "inactive status" are 
defined in Rule .0504 of this Subchapter. For continuing 
education purposes, the The term "initial licensure" shall 
include means the first time that a license of a particular type 
is issued to a p e r son, person, and reinstatement of an expired 
or revoked license. Thus, issuance of a b r oke r license to a 
p e r son previously li c ensed as a salesman is conside r ed to be 
ini t ial — lic e nsur e : — however. — r eins t atement of an ex p i r ed. 
r evoked o r sus pe nd e d licens e does not constitute initial 
licensure. 

Authority G.S. 9 3 A- 3(c): 93A-4A. 

SUBCHAPTER 58B - TIME SHARES 



.0407 PER STUDENT FEE 

Following completion of any approved continuing 
education update or elective course, the sponsor must submit 
to the Commission, along with the reports required to be 
submitted by Rule .0406 of this Section, a fee in the amount 
of five dollars ($5.00) for each licensee who satisfactorily 
completes the course according to the criteria in 21 NCAC 
58 A .1705. This fee is not required if the sponsor is a 
community college, junior college, college or university 
located in North Carolina and accredited by the Southern 
Association of Colleges and Schools, or is an agency of 
federal, state or local government. This fee may be paid by 
check payable to the North Carolina Real Estate Commission. 
A se p ara t e check is requi r ed for each speara t e class session. 

Authority G.S. 93A-3(c); 93A-4A. 



TITLE 26 - OmCE OF ADMEVJISTRATIVE 
HEARINGS 

Notice is hereby given in accordance with G.S. 1508-21. 2 
that the Office of Administrative Hearings intends to 
amend rule cited as 26 NCAC 3 .0122. Notice of Rule- 
making Proceedings was published in the Register on October 
15. 1997. 

Proposed Effective Date: August 1. 1998 

A Public Hearing will be conducted at 10:00 a.m. on 
February 2. 1998 at 422 N. Blount Street, Hearing Room 
102. Raleigh. NC. 

Reason for Proposed Action: By contracting with a couri 
reporting ser\ice, transcripts can be obtained faster and at a 
lower cost. 

Comment Procedures: Any interested person may present 
their vie\vs either orally or in writing at the hearing. Any t 
other written comments should be directed to Susana ' 
Honeywell, Rule-making Coordinator, by mail to: PO 



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PROPOSED RULES 



statement regarding the number and type of properties listed, brokerage services furnished by its principal broker through 

sold, bought, leased, or rented for others by the salesman another firm, and that no person is affiliated with it other 

while under the supervision of the broker-in-charge. than its principal broker, shall not be required to designate a 

(e) A licensed real estate firm which demonstrates on a broker-in-charge. 
form prescribed by the Commission that it has qualified for 

licensure solely for the purpose of receiving compensation for Authority G.S. 93A-3(c). 

.0114 RESIDENTIAL PROPERTY DISCLOSURE STATEMENT 

(a) Every owner of real property subject to a transfer of the type contemplated by G.S. 47E-1, 2, and 3, shall complete the 
following residential property disclosure statement and furnish a copy of the complete statement to a purchaser in accordance 
with the requirements of G.S. 47E-4: 

STATE OF NORTH CAROLINA 
RESIDENTIAL PROPERTY DISCLOSURE STATEMENT 

Instructions to Property Owners 

1 . North Carolina General Statute 47E requires owners of residential real estate (single-family homes and buildings 
with up to four dwelling units) to furnish purchasers a property disclosure statement. This form is the only one 
approved for this purpose. A disclosure statement must be furnished in cormection with the sale, exchange, option 
and sale under a lease with option to purchase (unless the tenant is already occupying or intends to occupy the 
dwelling). A disclosure statement is not required for some transactions, including the first sale of a dwelling which 
has never been inhabited and transactions of residential property made pursuant to a lease with option to purchase 
where the lessee occupies or intends to occupy the dwelling. For a complete list of exemptions, see N.C.G.S. 
47E-2. 

2. You must check one of the boxes for each of the 20 questions on the reverse side of this form. 

a. If you check "Yes" for any question, you must describe the problem or attach a report from an engineer, 
contractor, pest control operator or other expert or public agency describing it. If you attach a report, you will 
not be liable for any inaccurate or incomplete information contained in it so long as you were not grossly 
negligent in obtaining or transmitting the information. 

b. If you check "No", you are stating that you have no actual knowledge of any problem. If you check "No" and 
you know there is a problem, you may be liable for making an intentional misstatement. 

c. If you check "No Representation", you have no duty to disclose the conditions or characteristics of the 
property, even if you should have known of them. 

* If you check "Yes" or "No" and something happens to the property to make your Statement incorrect or 
inaccurate (for example, the roof begins to leak), you must promptly give the purchaser a corrected 
Statement or correct the problem. 

3. If you are assisted in the sale of your property by a licensed real estate broker or salesman, you are still responsible 
for completing and delivering the Statement to the purchasers; and the broker or salesman must disclose any material 
facts about your property which they know or reasonably should know, regardless of your responses on the Statement. 

4. You must give the completed Statement to the purchaser no later than the time the purchaser makes an offer to 
purchase your property. If you do not, the purchaser can, under certain conditions, cancel any resulting contract (See 
"Note to Purchasers" below). You should give the purchaser a copy of the Statement containing your signature and 
keep a copy signed by the purchaser for your records. 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1165 



PROPOSED RULES 



Note to Purchasers 

If the owner does not give you a Residential Propeily Disclosure Statement by the time you make your 
offer to purchase the property, you may under certain conditions cancel any resulting contract. To 
cancel the contract, you must personally deliver or mail written notice of your decision to cancel to the 
owner or the owner's agent within three calendar days following the date of the contract or three 
calendar days following your receipt of the Statement, whichever occurs first. However, in no event 
does the Disclosure Act permit you to cancel a contract after settlement of the transaction or (in the case 
of a sale or exchange) after you have occupied the property, whichever occurs first. 

If you properly cancel the contract, you are entitled to a refund of any deposit monies you may have 
paid, and you cannot be otherwise penalized. 



5. 



In the space below, type or print in ink the address of the property (sufficient to identify it) and 
sign and date. 



your name. Then 



Property Address: 
Owner's Name(s): 



Owner(s) acknowledge having examined Ms Statement before signing and that all information is true and 
correct as of the date signed. 



Owner Signature: 
Owner Signature: 



Date 
Date 



19 
19" 



Piirchaser(s) acknowledge receipt of a copy of this disclosure statement; that they have examined it before 
signing; that they understand that this is not a warranty by owner or owner's agent; that it is not a 
substitute for any inspections they may wish to obtain; and that the representations are made by the owner 
and not the owner's agent (sj or subagent(s). 



Purchaser Signature: 
Purchaser Signature: 



Date 
Date 



19 

19 



Property Address/Description: 

Regarding the property identified above, are you aware of any problem (malfunction or defect) with the: 



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PROPOSED RULES 



Drawer 27447, Raleigh. NC 27611-7447 or faxed to: 733- 
3407. 

Fiscal Note: This Rule does affect the expenditures or 
revenues of state government funds. This Rule does not affect 
local government funds. This Rule does not have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 1 2-month period. 

CHAPTER 3 - HEARINGS DIVISION 

SECTION .0100 - HEARING PROCEDURES 

.0122 OFFICIAL RECORD 

(a) The official record of a contested case is shall be 
available for public inspection upon r easonable request. An 
administrative law judge may, upon good cause shown and 
consistent with law, order part or all of an official record 
sealed. 

(b) irh The official record shall be prepared in accordance 
with G.S. 150B-37(a). 

(c) f2) Contested case hearings arc shall be recorded either 
by a four-track recording system or a professional court 
reporter using stenomask or stenotype. 

(d) fa) Transcript costs incurred shall be divided equally 
among the party (ies) requesting a transcript. 

(e) fb) Any other costs incurred when using a professional 
court reporter shall be divided equally among the requesting 
party (ies). 

£0 (c) A 24 hour cancellation notice is shall be required in 
all cases. The party(ies) responsible for the cancellation shall 



be liable for any cancellation fees. 

(g) f^ Transcripts of proceedings during which oral 
evidence is presented will be made only upon request of a 
party . OAH shall contract with an independent contractor to 
provide transcript services. Transcript requests must be made 
to the independent contractor. The name and phone number 
of the independent contractor may be obtained by calling the 
Office of Administrative Hearings. Transcript costs shall be 
provided to the requesting party by the independent 
contractor. T r ansc r i p t costs shall include the cost of an 
original f or t he Offic e of Administ r ative Hearings. An 
attorney requesting a transcript on behalf of a party is shall be 
a guarantor of payment of the cost. Cost shall be determined 
unde r su p e r vision of the Chief Administrative Law Judge 
who, in cases deemed a ppr o pr iate by him. The independent 
contractor may require an advance security deposit to cover 
the prospective cost. The secu r ity deposit shall be a pp lied to 
the actual cost and any excess shall be returned to the paily 
which submitted i t . 

(h) (4) Copies of tapes are available upon written request 
at a cost of three dollars ($3.00) plus tax per tape. 

£11 i6i Copies of OAH Hearings tapes or Non-OAH 
Certified transcripts therefrom are not part of the official 
record. 

Note: Rule 5.3(B) of the Rules of Professional Conduct 
permits an attorney to advance or guarantee expenses of 
litigation provided the client remains ultimately liable for 
such expenses. 

Authority G.S. 150B-37. 



12:13 



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1173 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary nde(s) in the North Carolina Administrative Code. 
Pursuant to G.S. 150B-21 .1 (e), publication of a temporary rule in the North Carolina Register senes as a notice of 
nde-making proceedings unless this notice has been previously published by the agency. 



TITLE 7 - DEPARTMENT OF CULTURAL 
RESOURCES 

Rule-making Agency: North Carolina Historical 

Commission 

Rule Citation: 7 NCAC 4R .0909 - .0915 

Effective Date of Temporan Rule: January 1, 1998 

Findings Reviewed and Approved by: Julian Mann, III 

Authority for the rule-making: G.S. 105-130. 42(bl(2): 
105-151. 23(b)(2) 

Effective Date of Permanent Rule: August 1, 1998 

A Public Hearing will be conducted at 10:00 a.m. on 
February 4, 1998 at the Archives/State Library Building, 
Room 305. 109 E. Jones St., Raleigh. NC. 

Reason for Proposed Action: The rules shall govern the 
certification by the State Historic Preservation Officer of 
historic stmctiires and the certification of the rehabilitation of 
historic structures. The certifications are required, under the 
above-cited statutory authority, in order for taxpayers to 
obtain an income tax credit for expenditures to rehabilitate 
nonincome-producing historic structures. 

Comment Procedures: Written or oral comments may be 
given at public hearing. All other written comments should 
be sent to Archives/State Library Bldg, 109 East Jones Street, 
Raleigh, NC. to the attention of David Brook. 

Fiscal Note: Uiese Rules do affect the expenditures or 
revenues of state government funds. Local government funds 
are not affected. Viese Rules do not have a substantial 
economic impact of at least five million dollars ($5,000,000) 
in a 12-month period. 

CHAPTER 4 - DIVISION OF 
ARCHIVES AND HISTORY 

SL'BCHAPTER 4R - .ARCH.\EOLOGV AND 
HISTORIC PRESERVATION SECTION 

SECTION .0900 - TAX ACT 
CERTinCATION REVIEW 

.0909 ONTRVIEW OF STATUTORY 

AUTHORITY LINDER G.S. 105-130.42 
AND G.S. 105-151.23 



laj G.S. 105-130.42 and G.S. 105-151.23 require the State 
Historic Preser\'ation Officer (SHPO) to make certifications 
of historic significance and certifications of rehabilitation in 
connection with tax incentives involving the rehabilitation of 
non-income-producing historic properties. 

(b) The procedures for obtaining cenifications are set forth 
in Rules .0909 z .0915 of this Section. Owners wishing 
cenifications shall provide sufficient documentation to the 
SHPO to make cenification decisions. These procedures 
shall be applicable to future and pending certification requests 
except as otherwise provided herein. 

(c) Requests for certifications and approvals of proposed 
rehabilitation work shall be sent by an owner to the SHPO for 
re\'iew. All certification decisions shall be made by the 
SHPO based upon review by HPO staff of the application and 
supporting documentation. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary Adoption Eff January' 1. 1998. 

.0910 DEFINITIONS 

For purposes of Rules .0909 through .0916 of this Section, 
the following definitions shall applv: 

(1) "Cenification" means the process established b^; 
these Rules to determine the historic significance of 
propenies within National Register or cenified 
historic districts as well as to approve proposed and 
completed rehabilitation work. 

(2) "Cenified Historic District" means any district 
which is: 

(a) designated under a local statute which has 
been cenified hx liie Secretary' of the Interior 
as containing criteria which will substantially 
achieve the purpose of preserving and 
rehabilitating buildings of historic 
significance to the district: and 

(b) certified by the Secretary of the Interior as 
meeting substantially all of the requirements 
for the listing of districts in the National 
Register of Historic Places. 

(3) "Certified Historic Structure" means a structure 
which is either: 

(a) individuallv listed in the National Register of 
Historic Places; or 

(b) located in a National Register or cenified 
historic district and cenified by the SHPO as 
being of historic significance to the district. 

Ponions of larger buildings, such as single 
condominium apanment units, shall not be 
considered to be individual structures. Rowhouses. 
even with abutting or party' walls, shall be 
considered as separate buildings. For purposes of 



1174 



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12:13 



TEMPORARY RULES 



the certification decisions set forth in these rules, a 
certified historic structure encompasses the historic 
building and Us site, landscape features, and 
environment, generally referred to herein as a 
"property" as defined below. 

(4) "Department of the Interior" means the United 
States Department of the Interior. 

(5) "Historic District" means a geographically 
definable area, urban or rural, possessing a 
significant concentration, linkage or continuity of 
sites, buildings, structures or objects united 
historically or aesthetically hx plan or physical 
deyelopment. A district may also comprise 
individual elements separated geographically but 
linked by association or history. 

(6) "Historic Preservation Certification Application 
Part A-Description of Rehabilitation" (Part A) 
means the state application form from which the 
SHPO determines if the proposed rehabilitation 
work: 

(a) appears to meet the "Standards for 
Rehabilitation": 

(b) appears to meet the "Standards for 
Rehabilitation" with conditions: or 

(c) does not appear to meet the "Standards for 
Rehabilitation." 

This is a preliminary application only, since a final 
certification of rehabilitation may be issued to the 
owner of a "certified historic structure" only after 
rehabilitation work is completed through Part B. 

(7) "Historic Preservation Certification A pplication 
Part B--Request for Final Certification" (Part B} 
means the state application form from which the 
SHPO determines: 

(a) if a property contributes to or does not 
contribute to tlie significance of a National 
Re gister or certified historic district: and: 

(b) if the completed rehabilitation work meets or 
does not meet the "Standards for 
Rehabilitation." 

(8) "Historic Preservation Certification Application 
Attachment 1 -Information for Determination of 
Significance for Properties within National Register 
or Certified Historic Districts" (Attachment Ij 
means the state form from which the SHPO 
determines if a property contributes or does not 
contribute to the significance of the district. 

(9) "Historic Preservation Certification Application 
Amendment Sheet" means the state form on which 
an owner amends an application. 

(10) "Inspection" means a visit by the HPO to a historic 
structure for the purposes of reviewing and 
evaluating the significance of the structure and the 
proposed, ongoing, or completed rehabilitation 
work. 

(11) "National Park Service" (NPS) means the division 
within the United States Department of the Interior 



responsible for administering national parks and 
historic preservation programs. 

(12) "National Register Historic District" means any 
district listed in the National Register of Historic 
Places. 

(13) "National Register Nomination" means the 
documentation for a resource that includes the 
National Register Nomination Form NPS 10-900 
with accompanying continuation sheets, maps, and 
photographs and that is prepared in accord with 
requirements and guidance in the NPS publication 
How to Complete the National Re gister 
Registration Form: Bulletin 16A and in other NPS 
technical publications on the subject. 

(14) "National Register of Historic Places" means the 
official federal roster of districts, sites, buildings, 
structures, and objects significant jn American 
history, architecture, archeology, engineering, and 
culture that the Secretary of the Interior is 
authorized to expand and maintain pursuant to the 
National Historic Preservation Act of 1966. as 
amended (often referred to as the "National 
Register"). 

(15) "Owner" means a person, partnership, corporation. 
or public agency holding a fee-simple interest in a 
property or any other person or entity recognized 
by the North Carolina Department of Revenue for 
purposes of the applicable tax benefits. 

(16) "Property" means a building(s) and its site and 
landscape features. 

(17) "Rehabilitation" means the process of returning a 
building or buildings to a state of utility, through 
repair or alteration, which makes possible an 
efficient use while preserving those portions and 
feamres of ^ae building and its site and environment 
which are significant to its historic, architectural . 
and cultural values as determined by the SHPO. 

(18) "Secretary of the Interior" means the Secretary of 
the United States Department of the Interior or the 
designee authorized to carry out his/her 
responsibilities. 

(19) "Standards for Rehabilitation" means the Secretary 
of the Interior's "Standards for Rehabilitation" as 
cited in the Code of Federal Regulations. 36 CFR 
6L 

(20) "State Historic Preservation Office" (HPO) means 
the section within the North Carolina Division of 
Archives and History responsible for administering 
historic preservation programs. 

(21) "Structure" means something built or constructed 
such as a building or dam. However, sites, 
landscapes, and objects do not qualify as structures. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary Adoption Eff. January 1. 1998. 

.091 1 INTRODUCTION TO fflSTORIC 



NORTH CAROLINA REGISTER 



January 2, 1998 



1175 



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PRESERVATION CERTinCATIONS 
AND INFORMATION COLLECTION 

(a) Ordinarily, only the fee-simple owner of the property 
in question may apply for the historic preseryation 
certifications described in Rules .0912 and .0914 in this 
Section. If an application for a certification is made by 
someone other than the fee-simple owner, however, the 
application must be accompanied by a written statement from 
the fee-simple owner indicating that he or she is aware of the 
application and has no objection to the request for 
certification. 

(b) Owners of properties which are not yet individually 
listed in tjhe National Register of Historic Places or which are 
in areas that are not yet National Register or certified historic 
districts may obtain certifications from the SHPO on whether 
or not rehabilitation proposals meet the "Standards for 
Rehabilitation" through Part A and proceed with the 
rehabilitation prior to the listing of the individual property or 
district in the National Register. Because final certifications 
of rehabilitation will be issued only to owners of certified 
historic structures, properties must be individually listed in 
the National Register or be located within National Register 
or certified historic districts by the time Pan B is submitted to 
the SHPO. Similarly, if a property is located in a National 
Register or certified historic district but outside the district's 
period of significance, the National Register nomination or 
certification report for the district must be amended to expand 
the period of significance by the time Part B is submitted to 
the SHPO. 

(c) Applications for certifications of proposed 
rehabilitation. historic significance. and completed 
rehabilitation shall be submitted on the Historic Preservation 
Certification Application forms. Two copies of the 
application and supporting documentation such as 
photographs and plans are required. Part A shall be used in 
requesting a certification of a proposed rehabilitation project. 
and Part B shall be used in requesting a final certification of a 
completed rehabilitation project. Attachment 1 shall be 
submitted with Part B in order for the SHPO to certify a 
property's historic significance within a National Register or 
certified historic district. Attachment 1 may also be 
submitted with Part A if the applicant desires a preliminary 
and non-binding determination of a property's historic 
significance within a National Register or certified historic 
district prior to undertaking a rehabilitation project. 

(d) Application forms are available from the HPO. 

(e) Requests for certifications and approvals of proposed 
rehabilitation projects shall be sent to the HPO. 

(f) Where adequate documentation is not provided, the 
owner will be notified in writing of the additional information 
needed to undertake or complete the review. At such time the 
application shall be placed on hold pending the receipt of 
complete information. If complete information js not 
received within 30 days from the date of the request to the 
owner, the application shall be returned to the owner due to 
insufficient documentation. 

(g) Approval of applications and amendments to 



applications shall be conveyed to the owner only in writing 
by the SHPO or his/her duly authorized representative. 
Decisions with respect to certifications shall be made on the 
basis of the descriptions contained in the application forms 
and other available information. In the event of any 
discrepancy between the application form and other 
supplementary material submitted with it (such as 
architectural plans, drawings, specifications, etc.). the 
applicant shall be requested to resolve the discrepancy in 
writing. In the event the discrepancy is not resolved, the 
description in the application form shall take precedence. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary Adoption Eff. January 1. 1998. 

.0912 CERTIFICATIONS OF HISTORIC 
SIGNIFICANCE 

(a) Requests for determinations of historic significance for 
properties within National Register or certified historic 
districts shall be made by the owner to determine: 

(1) that a property located within a National Register 
or a certified historic district contributes to the 
historic significance to the district and is. therefore. 
a "certified historic structure": or 

(2) that a property located within a National Register 
or certified historic district is not of historic 
significance to the district. 

(b) The owner may contact the HPO to determine whether 
or not a property is individually listed in the National 
Register of Historic Places or is located within a National 
Register or certified historic district. 

£cl If a property is located within the boundaries of a 
National Register or certified historic district and the owner 
seeks certification by the SHPO that the property contributes 
to the historic significance of the district, the owner must 
complete Attachment i and submit it with Part R The 
documentation required on Attachment 1 includes: 

(1) Name and address of property. 

(2) Current photographs of property including 
photographs of the building and its site and 
landscape features: photograph(s) showing the 
property along with adjacent properties and 
structures on the street: and photographs of interior 
features and spaces adequate to document 
significance. 

(3) Brief written description of physical appearance 
including distinctive features and spaces, any 
alterations, and date(s) of construction. 

(4) Brief statement of significance summarizing how 
the property does or does not reflect the values that 
give the district its distinctive historical and visual 
character, and explaining any significance attached 
to the property itself (e.g.. unusual building 
techniques, important event that took place there, 
etc.). 

(5) Map of the historic district clearly delineating 
property's location within the district. 



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(d) Propenies in National Register or ceniFied historic 
districts containing more than one building where the 
buildings are judged by the SHPO to have been functionally 
related historically to serve an overall purpose, such as a mill 
complex or a residence and carriage house, shall be treated as 
a single certified historic structure when rehabilitated as part 
of an overall project. Buildings that are functionally related 
historically are those which have functioned together to serve 
an overall purpose during the property's period of 
significance. An evaluation shall be made to determine 
whether the component buildings contribute to the historic 
significance of the property and whether the property 
contributes to the significance of the historic district. 

(e) If a building is to be moved as part of a rehabilitation 
for which certification is sought, the owner must follow the 
procedures outlined in this Paragraph. When a building is 
moved, every effort shall be made to re-establish its historic 
orientation, immediate setting, and general environment. 
Moving a building within a National Register or certified 
historic district may result in denial of a certification of 
historic significance. 

(1) Documentation must be submitted that 
demonstrates: 

(A) the effect of the move on the building's 
integrity and appearance (any demolition, 
changes in foundations, etc.): 

£B) photographs of the original site and general 
environment of the new site: 

(C) evidence that the new site does not possess 
historical significance that would be 
adversely affected by the moved building: 

(D) the effect of the move on the distinctive 
historical and visual character of the district, 
where applicable: and 

(E) the method of moving the building. 

(2) If an owner moves a building into a National 
Register or certified historic district or moves a 
building elsewhere within a district, the required 
information described in Subparagraph (e)(1) shall 
be included in Attachment 1 which must be 
submitted with Part B^ The moved building shall 
be evaluated to determine if it contributes to the 
historic significance of the district both before and 
after the move as in Paragraph £fl of this Rule. If 
the owner desires a preliminary and non-binding 
determination that a building proposed to be moved 
will contribute to tlie historic significance of the 
district after the move. Attachment 1 may be 
submitted with Part A. 

m Propenies within National Register or cenified historic 
districts shall be evaluated to determine if they contribute to 
the historic significance of ttie district by application of the 
"Standards for Evaluating Significance within National 
Register or Certified Historic Districts" as set forth in Rule 
.0913. 

Ig) Once the significance of a property located within a 
National Register or certified historic district has been 



determined by the SHPO. written notification shall be sent to 
the owner. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary Adoption Eff. January 1. 1998. 

.0913 STANDARDS FOR EVALUATING 

SIGNIFICANCE WITHIN NATIONAL 
REGISTER OR CERTIFIED fflSTORIC 
DISTRICTS 

(a) Properties located within National Register or certified 
historic districts shall be reviewed by the SHPO to determine 
if they contribute to the historic significance of the district by 
applying the following Standards for Evaluating Significance 
within National Register or Certified Historic Districts. 

(1) A building contributing to the historic significance 
of a district is one which by location, design, 
setting, materials, workmanship, feeling, and 
association adds to tlie district's sense of time and 
place and historical development. 

(2) A building not contributing to tlie historic 
significance of a district is one which does not add 
to tlie district's sense of time and place and 
historical development: or one where the location, 
design, setting, materials, workmanship, feeling, 
and association have been so altered or have so 
deteriorated that the overall integrity of the 
building has been irretrievably lost. 

(3) Ordinarily buildings that have been built within the 
past 50 years do not meet the National Register 
Criteria for Evaluation and are not considered to 
contribute to tlie significance of a district. 
Buildings less than 50 years old are considered to 
contribute to the significance of a district if the 
period of significance specified in the National 
Register nomination (or Certified Historic District 
designation report) includes the date of the 
building, or if the nomination (or designation 
repon) establishes that the building individually 
meets the National Register Criteria Exception for 
properties less than 50 years old. 

(b) If non-historic surface material obscures a facade, it 
may be necessary for the owner to remove the surface 
material as part of the rehabilitation so that a determination of 
significance can be made. If the previously obscured facade 
has retained substantial historic integrity and the property 
otherwise contributes to the historic district, it will be 
determined to be a certified historic structure. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporar,' Adoption Eff. Januar\ 1. 1998. 

.0914 CERTIFICATIONS OF REHABILITATION 

(a) Owners who want rehabilitation projects for certified 
historic structures to be certified by the SHPO as being 
consistent with the "Standards for Rehabilitation" shall 
comply with the procedures listed below. 



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(1) Part A must be approved by the SHPO prior to 
undertaking rehabilitation work. To initiate review 
of a rehabilitation project for certification purposes. 
an owner shall submit Part A to the SHPO. In aU 
cases, documentation, including photographs 
adequate to document the appearance of the 
structure(s). both on the exterior and on the 
interior, and its site and environment prior to 
rehabilitation must accompanv the application. The 
social security or ta.xpayer identification number(s) 
of aU owners must be provided in the application. 
Other documentation. such as cleaning 
specifications, surveys of window conditions, or 
documentation of deterioration, may be required by 
the SHPO to evaluate rehabilitation projects. Plans 
for any attached, adjacent, or related new 
construction must also accompany the application. 
Because the circumstances of each rehabilitation 
project are unique to the particular certified historic 
structure involved, certifications that may have 
been granted to other rehabilitations are not 
specifically applicable and may not be relied on by 
owners as applicable to their projects. 

(2) A project does not become a cenified rehabilitation 
until it is completed by the owner and certified by 
the SHPO. When requesting certification of a 
completed rehabilitation project, the owner shall 
submit Part B and pro\ide the project completion 
date and a signed statement that the completed 
rehabilitation project meets the "Standards for 
Rehabilitation" and is consistent with the work 
described in Part A. Also required in requesting 
certification of a completed rehabilitation project 
are costs attributed to tlie rehabilitation, 
photographs adequate to document the completed 
rehabilitation, and the social security or taxpayer 
identification number(s) of ail owners. 

(b) A rehabilitation project for certification purposes 
encompasses all work on tiie interior and exterior of the 
certified historic structure(s) and its site and environment as 
determined by the SHPO. as well as related demolition, new 
construction or rehabilitation work which may affect the 
historic qualities, integrity or landscape features, and 
environment of tlie certified historic structure(s). More 
specific considerations in this regard are as follows: 

(1 ) All elements of tlie rehabilitation project must meet 
the "Standards for Rehabilitation": portions of the 
rehabilitation project not in conformance with the 
"Standards for Rehabilitation" may not be 
exempted. An owner undertaking a rehabilitation 
project shall not be held responsible for prior 
rehabilitation work not part of tlie current project 
or rehabilitation work that was undertaken by 
previous owners or third panics. 
(-) If tlie SHPO has reason to believe that a project 
submitted for certification does not include the 
entire rehabilitation project subject to review 



13} 



(4) 



(5i 



hereunder, the SHPO may choose to withhold a 
decision on such a certification until such time as 
the proper scope of tjie rehabilitation project to be 
reviewed has been determined. Factors to be taken 
into account by tlie SHPO in tins regard include. 
but are not limited to, tlie facts and circumstance of 
each application and 

(A) whether previous demolition, construction. 
or rehabilitation work irrespective of 
ownership or control at tlie time was in fact 
undertaken as part of tlie rehabilitation 
project for which certification is sought, and 

(B) whether property convevances. 
reconfigurations. ostensible ownership 
transfers, or other transactions were 
transactions which purportedly limit the 
scope of a rehabilitation project for the 
purpose of review by tlie SHPO without 
substantially altering beneficial ownership or 
control of the property . 

The fact that a property may still qualify as a 
certified historic structure after having undergone 
inappropriate rehabilitation, construction, or 
demolition work does not preclude the SHPO from 
determining that such inappropriate work is part of 
the rehabilitation project to be reviewed. 
Conformance to the "Standards for Rehabilitation" 
shall be determined on the basis of tlie application 
documentation and other available information by 
evaluating the property as it existed prior to the 
commencement of the rehabilitation project. 
For rehabilitation projects involving more than one 
certified historic structure where the structures are 
judged by tlie SHPO to have been functionally 
related historically to serve an overall purpose, 
such as a mill complex or a residence and carriage 
house, rehabilitation certification shall be issued on 
the merits of the overall project rather than for each 
structure or individual component. For 

rehabilitation projects where there is no historic 
functional relationship among the structures, the 
certification decision shall be made for each 
separate certified historic structure regardless of 
how they are grouped for ownership or 
development purposes. 

Demolition of a building as part of a rehabilitation 
project involving multiple buildings may result in 
denial of certification of tlie rehabilitation. In 
projects where there is iio historic functiona l 
relationship among the structures being 
rehabilitated, related new construction which 
physicaJlv expands one certified historic structure 
undergoing rehabilitation and, therefore, directlv 
causes the demolition of an adjacent structure will 
generally result in denial of certification of the 
rehabilitation unless a determination has been made 
that the building to be demolished is not a certified 



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historic structure. In rehabilitation projects where the 
structures have been determined to be functionally related 
historically, demolition of a component may be approved, in 
limited circumstances, when: 

(A) the component is outside the period of 
significance of the property; 

(B) the component is so deteriorated or altered 
that its integrity has been irretrievably lost: 
or 

(O the component is a secondary one that 
generally lacks historic, engineering, or 
architectural significance or does not occupy 
a major portion of the she and persuasive 
evidence is present to show that retention of 
the component is not technically or 
economically feasible. 

(6) In situations involving the rehabilitation of a 
certified historic structure in a historic district, the 
SHPO shall review the rehabilitation project first as 
it affects the certified historic structure and second 
as n affects the district and make a certification 
decision accordingly. 

(7) In the event that an owner of a portion of a certified 
historic structure requests certification for a 
rehabilitation project related only to that portion of 
the structure, but there is or was a larger related 
rehabilitation project(s) occurring with respect to 
other portions of the certified historic structure, the 
SHPO's decision on the requested certification shall 
be based on review of tlie overall rehabilitation 
project(s) for tlie certified historic structure. 

(c) Upon receipt of a complete Part A of the application 
describing the rehabilitation project, the SHPO shall 
determine if the project is consistent with the "Standards for 
Rehabilitation." If the proposed project does not meet the 
"Standards for Rehabilitation." the owner shall be advised of 
that fact in writing and, where possible, shall be advised of 
necessary revisions, in the form of conditions, that will bring 
the proposed rehabilitation project into compliance with the 
Standards. 

(d) Once a proposed project has been approved, 
substantive changes in the work as described in the 
application must be brought promptly to tlie attention of the 
SHPO by written statement to ensure continued conformance 
to tlie Standards: such changes shall be made using the 
Amendment Sheet. The SHPO shall notify the owner in 
writing whether the revised project continues to meet the 
Standards. Oral approvals of revisions are not authorized or 
valid. 

£ei Completed projects may be inspected by tlie HPO to 
determine if tlie work meets the "Standards for 
Rehabilitation." 

(f) If a completed rehabilitation project does not meet the 
"Standards for Rehabilitation." an explanatory letter from the 
SHPO or his/her duly authorized representative shal l be sent 
to the owner. If a submitted Part B documents that a property 
was not rehabilitated in conformance with the "Standards for 



Rehabilitation" and that the nonconforming work appears tig 
have resulted in the loss of the qualities for which the 
property or tlie district in which it is located was listed in the 
National Register, the SHPO. as administrator of the National 
Register program in North Carolina, shall notify the National 
Register of Historic Places in accord with the Code of Federal 
Regulations. 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary Adoption Eff. January L. 1998. 

.0915 STANDARDS FOR REHABILITATION 

(a) The North Carolina Historical Commission interprets 
the "Standards for Rehabilitation" to require that the quality 
of materials and craftsmanship used in a rehabilitation project 
must be commensurate with the quality of materials and 
craftsmanship of the historic building jn question. Certain 
treatments, if improperly applied, or certain materials by their 
physical properties, may cause or accelerated physical 
deterioration of historic buildings. Inappropriate physical 
treatments include, but are not limited to: damaging masonry 
repointing techniques: exterior cleaning methods such as 
sandblasting or damaging water pressure: or tlie introduction 
of sealers or "non-breathable" materials on masonry surfaces. 
insulation, storm windows, and epoxy where the application 
of such treatments or materials does not c onform to NPS 
Guidelines for Rehabilitating Historic Building s and NPS 
"Preservation Briefs." Nonconforming use of these materials 
and treatments may result in denial of certification. 
Similarly, exterior additions that duplicate the form, material, 
and detailing of tlie structure to tlie extent that they 
compromise the historic character of tlie structure shall result 
in denial of certification. 

Other typical denial issues in which the historic integrity of 
the structure is compromised include but are not limited to 
the following: removal of character defining historic 
exterior/interior materials and features such as doors, 
windows, woodwork, and significant landscape features: 
excessive site paving: installing undocumented or non-period 
features: excessive alteration of exterior/interior features or 
spaces: removal of plaster from interior masonry walls to 
expose underlying masonry surface: installation of 
inappropriate replacement doors and windows such as metal 
or vinyl clad windows in place of wood windows: 
replacement of non-deteriorated or repairable materials such 
as windows or millwork: painting unpainted masonry 
surfaces: installation of artificial siding. 

(b) In limited cases, it may be necessary to dismantle and 
rebuild portions of a certified historic structure to stabilize 
and repair weakened structural members and systems. Jn 
such cases, the SHPO shall consider such extreme 
intervention as part of a certified rehabilitation if 

(1) the necessity for dismantling is justified in 
supporting documentation: 

(2) significant architectural features and overall design 
are retained: and 

(3) adequate historic materials are retained to maintain 



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1179 



TEMPORARY RULES 



the architectural and historic integrity of the overall 

structure. 
The "Standards for Rehabilitation" require retention of 
distinguishing historic materials of external and internal walls 
as well as structural systems. In limited instances, 
rehabilitations involving removal of existing external walls, 
i.e.. external walls that detract from the historic character of 
the structure such as in the case of a nonsignificant later 
addition or walls that have lost their structural integritv due 
to deterioration, may be cenified as meeting the "Standards 
for Rehabilitation." 

History Note: Authority G.S. 105-130.42; 105-151.23; 
Temporary- Adoption Eff. January 1. 1998. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Rule-making Agency: Social Senices Commission 

Rule Citation: 10 NCAC 24A . 0508 

Effective Date: December 8. 1997 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: S.L. 1997-497 

Reason for Proposed Action: Action to adopt temporary 
rules is required to insure that rules of the Social Senices 
Commission are consistent with S.L. 1997-497. Current APA 
rules for recoupment of benefits do not address all programs 
of public assistance and do not include garnishment as a 
remedy. The ability to petition the court for an order of 
garnishment of wages is a new remedy and shall be used only 
after all administrative remedies have been exhausted 
unsuccessfidly. This action is necessary because a section was 
added to G.S. 108A-25, which permits county departments of 
social services to petition the court for garnishment of wages 
to recoup fraudulent public assistance program payments. 
The law became effective December 1, 1997. 

Comment Procedures: Anyone wishing to comment should 
contact Sharnese Ransome. APA Coordinator, Social Senices 
Commission. NC Division of Social Serxices. 325 N. 
Salisbury St.. Raleigh. NC 27603, phone 919/733-3055. 

CHAPTER 24 - SOCIAL SERVICES 

SUBCHAPTER 24A - GENERAL 

SECTION .0500 - GENERAL POLICIES 

.0508 ADVISORY TO COUNTIES REGARDING 
PETITION OF GARNISHMENT 

The Division of Social Ser\'ices shall advise county 



departments of social services and consolidated human 
services boards of any State and federal laws and regulations 
that restrict the garnishment of wages to recoup a fraudulent 
public assistance program payment as provided in G.S. 108A- 
25.1. 

History Note: Authority S.L. 1997-497; G.S. 108A-25.1; 

143B-153; 

Temporary- Adoption Eff. December 8. 1997. 






^^:^4:^4i4=4='}' 



Rule-making Agency: Social Serxices Commission 

Rule Citation: 10 NCAC 42C .3401, .3403, .3404, .3601 

Effective Date: December 8, 1997 - 10 NCAC 42C .3601; 
January 1, 1998 - 10 NCAC 42C .3401, .3403, .3404 

Findings Reviewed and Approved by: Julian Mann, IH 

Authority for the rule-making: G.S. 131D-2, 131D-34, 
143B-153 

Reason for Proposed Action: Amendments required to bring 
current adult care home rules into compliance with changes 
in law enacted by the 1997 Session of the General Assembly, 
SL 1997-431 and 1997-522. 

Comment Procedures: Anyone wishing to comment on these 
proposed rules should contact Sharnese Ransome, APA 
Coordinator, Social Services Commission, NC Division of 
Social Serxices, 325 N. Salisbury St., Raleigh, NC 27603, 
phone. 919/733-3055. 

CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT 

SUBCHAPTER 42C - LICENSING OF FAMH^Y 
CARE HOMES 

SECTION .3400 - LICENSING INFORMATION 

.3401 THE LICENSE 

(a) The license wrtt shall be issued by the Division of 
Facility Services when when, in the Division's judgm e nt, 
minimum requirements for licensing have been met under the 
rules of this Subchapter. It— The license rrmst shall be 
conspicuously posted in a public place in the home. 

(b) The license wttt shall be in effect for 12 months from 
the date of issuance unless revoked for cause, voluntarily or 
involuntarily terminated, or changed to provisional licensure 
status. 

(c) A provisional license may be issued in accordance with 
the following : G.S. 131D-2(b). 

Hi A provisional license may be issued by the Division 

of Facility S e rvices to a newly licens e d facility o r 
toa — facility — und e rgoing — a — plann e d — change — of 



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administrator when there ai ' c mino r deficiencies 
which would not endanger t he health, safety o r 
well-being of residents; 

(2) — A provisional license may b e issued to a facility 
when violations of the r ules of this Subchapter 
endange r — the — h e alth, — safety — or — well-being — of 
residents, or when the administ r a t o r fails to submit 
a plan of correction where lesser inf r actions have 
been cited, or when co rr ections have not been fully 
made — in — acco r dance — with — the — administ r ato r 's 
approved plan of co rr ec t ion; 

0i — The monitoring and licensing pr ocess begins with 
the county departmen t of social se r vices citing all 
violations of the r ules of this Subcha p te r and 
r e qu e sting th e home to pre p are a p lan of cor r ection. 
Upon a ppr oving the p lan of co r rection, the county 
depaitmcnt of social se r vices will — monito r the 
home's compliance wi t h t he a ppr oved p lan th r ough 

follow-u p visits to the home. If the p lanned 

corrections have not been made within t he time 
ag r eed to by the administ r a t o r and ap p roved by the 
county de p ailment of social se r vices, the county 
depaitmcnt will immediately notify the Division of 
Facility — S er vices and r equest — i t s assis t ance — in 
assuring compliance ; 

(4) — When it is alleged by t he coun t y de p artment of 
social servic e s that a facili t y is out of compliance 
with the mles of t his Subcha p te r and t hat one of the 
conditions men t ioned in Sub p arag r a p hs (c)(1) and 
(2) a pp lies, the Division of Facili t y Services will 
p rovide w r itten notifica t ion t o the adminis t rato r of 
the alleged facts or alleged conduc t which may 
war r an t t he issuance of a pr ovisional license. This 
no t ice will also announce th e forthcoming visi t by a 
consultan t of the Divisi o n of Facility Se r vices to 
th e facility to pr ovide the administ r ato r with an 
op p ortuni t y t o show t he home's compliance with 
the r ules of this Subcha p te r ; 

i5j — Based on the consultan t 's findings r egarding the 
alleged facts o r all e ged conduct which are t o be 
shared — m — writing — with — the — administ r ato r , — the 
Division — of Facili t y — Se r vices — may — nott^r — the 
adminis tr a t or of the discon t inuance of the p lan of 
cor r ection based on finding no violations, or ex t end 
the time allowed to cor r ect the violations if the r e is 
just cause, o r issue a p r ovisional license to the 
home ; 

(6) — If a provisional license is issued, the Division of 
Facili t y Services will provide the administ r ato r 
with a w r itten notice s p ecifying the reasons fo r the 
pr ovisional license, the co r rective action needed, 
t he time f r ame and any othe r conditions im p osed; 

t?) — A p r ovisional lic e nse may be issued for a du r a t ion 
of not less than 30 days no r more than 90 days. If 
the Division of Facility Se r vices finds jus t caus e for 
a home's failu r e t o cor r ect all violations within th e 
initial time pe r iod, it may extend the pr ovisional 



license an additional 30 to 90 days. Additional 
e x t ensions of between 30 to 90 days may be 
allowed bu t in no case will a home be permitted to 
remain on extended pr ovisional status fo r mo r e than 
one y e ar; 

(8) If a home has held a provisional license fo r one 

year, its lic e nse will t e rminate on the annivcrsaiy 
date of the initial issuance of the pr ovisional license 
on the basis of its continued failure to comply with 
the rules of this Subchap t e r ; 
(9) — The administ r ator is r es p onsible for notifying the 
Division of Facili t y SeiTices th r ough the county 
d ep artment of social services wh e n it has co rr ected 
all violations. — The Division of Facility Se r vices 
must ve r ify co rr ections within 10 wo r king days of 
t he notification and re issue the home's original 
license if co rr ections arc confirmed; 

iWj Du r ing the tim e per iod in which a pr ovisional 

license is initially issued, — staff of the county 

de p artmen t of social s er vices and the Division of 

Facility Se r vices will concent r ate thei r e ffo rt s to 

pr ovide the home with consultation and technical 

assistance t hrough frequent visits to the facility and 

confe r ences with the administ r ato r . — The pur p os e s 

of this contact are to aid the home in its efforts to 

achieve full com p liance with the rules of this 

Subcha pter , to make t he home well awa r e of the 

cons e quenc e s of non-compliance, and to docum e n t 

the home's pr og r ess toward com p liance ; and 

fH^(d) When a provisional license is issued, the 

administrator must shall post the lic e nsu re document 

provisional license and a copy of the notice from the Division 

of Facility Services identifying the reasons for it, in place of 

the full license. 



History Note: Authority G.S. 131D-2; 143B-153; 

Ejf. January 1. 1977: 

Readopted Ejf. October 31, 1977; 

Amended Ejf. April 1, 1984; 

Temporary Amendment Eff. January 1. 1998. 

.3403 TERMINATION OF LICENSE 

(a) The Division of Facility Services shall take action to 
license will automatically terminate the license when one of 
the following situations exist: 

(1) change of administ r ator ownership of the adult care 
home business: or due to illness, r eti r ement, death, 
p e r sonal r equest, or any o t her reason; 

(2) change of location of home ; home. 
i^ sale o r lease of home by administrator; 

(4) annive r sa r y — date — of — pr ovisional — license — held 

con t inuously fo r one year; 
(5) r equi re d — lic e nsing — re n e wa l — mate r ials — are — not 

r eceived by the Division of Facility Se r vices by 

ex p i r ation date. 

(b) The license is not transferable or assignable. 

(c) The unexpired license shall be returned to the state 



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Division of Facility Ser\'ices by the county depanment of 
social services with the following information: 
{ 1 ) reason for closing, 

(2) date of closing, 

(3) plans made for residents. 

(d) When an administrat or the owner of the adult care 
home business voluntarily closes his home, a signed statement 
to this effect-mtm shall be submitted to the county department 
of social services who wiii shall immediately forward the 
statement to the Division of Facility Services. The 
adminis tr a tor owner or his designee mus t shall give at least 
30 days prior notice of the closing to the county department 
of social services and the residents or their responsible 
persons. 

Histor}' Note: Auihonn- G.S. I31D-2; 143B-153; 
Eff. January 7, 7977.- 
Readopted Eff. October 31, 1977; 
Amended Eff. My 1, 1990; April 7, 1984; 
Temporary' Amendment Eff. Januar,- 1 . 1998. 

.3404 DENIAL AND REVOCATION OF 
LICENSE 

(a) A license may be denied o r r evoked by the Division of 
Facility Services at any time for substan t ial failure to comply 
with the rules of this Subchapter. 

(bj Denial or revoca t ion of licensu r e by the Division of 
Facility Services shall be effected by mailing to the applicant 
o r lic e ns e h o lde r, by registered mail, a notice setting forth the 
particular reasons for such action. Such denial or re voca t ion 
becomes effec t ive 20 days afte r mailing the n o tice. 

(c) A license may be revoked by the Division of Facility 
Services in accordance with G.S. 13ID-2(b) and G.S. 131D- 
29, 

ftrXd) When a facility receives a notice of re\ocation, the 
administrator most shall inform each resident and his 
responsible person of the notice and the basis on which it was 
issued. 

History Note: Authority G.S. 131D-2; 131D-29; 143B-53; 
Eff. January 7. 7977,- 
Readopted Eff. October 31, 1977; 
Amended Eff. April 7. 1984; May 7, 79S7; 
Temporary Amendment Eff . January- 1. 1998. 

SECTION .3600 - ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

.3601 ADMLNTSTRATIVE PENALTY 
DETERMINATION PROCESS 

(a) The county department of social services or the 
Division of Facilit\' Sep,'ices shall identify areas of non- 
compliance resulting from a complaint investigation or 
monitoring or survey visit which may be violations of 
residents' rights contained in G.S. 131D-21 or rules 
contained in this Subchapter. If the county depanment of 
social services or the Dhision of Facilit\' Services decides to 



r ec o mmend an administrative penal t y as defined in G.S. 
131D-34. that the violation is a Tvpe B violation as defined 
in G.S. 131D-34(a)(2). it shall require a plan of correction 
pursuant to G.S. 131D-34(a)(2). If the county depanment of d 
social services or the Division of Facility Services decides 1 
that the violation is a Type A violation as defined in G.S. 
131D-34(a)( 1 ). it shall follow the procedure required in G.S. 



131D-34(a)(l )(a-c) and prepare an administrative penalty 
proposal for submission to the Depanment. The proposal 
shall include a copy of the written confirmation required in 
G.S. 131D-34(a)(l noand documentation that the licensee 
was notified of the county depanment of social services' or 
the Division of Facility Services' intent to prepare and 
forward an administrative penalty proposal to the 
Depanment; offered an opponunity to provide additional 
information prior to the preparation of the proposal; after the 
proposal is prepared, given a copy of the contents of the 
proposal; and then extended an opportunity to request a tecaJ 
conference with the county de p a r tment of social servic e s 
agency proposing the administrative penaltw allowing the 
licensee 10 days to respond prior to forwarding the proposal 
to the Depanment. The conference, if requested of the 
county depanment of social services, shall include the county 
depanment director or his designee, manag e ment staff. The 
licensee may request a conference and produce information to 
cause the — coun t y — department — of social — services agency 
recommending the administrative penalty to change its 
proposal. The county de p artment of social se r vices agency 
recommending the administrative penalty may rescind its 
proposal; or change its proposal and submit it to the 
Department or submit it unchanged to the Depanment 
pursuant to G.S. 131D-34(c2). 

(b) An assistant chief of the Domiciliary - and Group Care 
Licensure Section shall receive the proposal, and review it for 
completeness, completeness and evaluate it to determine the 
penalty amount. 

( 1 ) If the proposal is complete, the assistant chief shall 
make a decision on the ty p e and amount of penalty 
to be submitted for conside r ation consideration and 
whether to recommend training in lieu of an 
administrative penalty pursuant to G.S. 131D- 
34(gl). 

(2) If the proposal is incomplete, the assistant chief 
shall contact the county de p artment — of social 
se r vices to the agency that submitted the proposal 
to request necessary changes or additional material. 

(3) When the proposal is complete and a ty p e and the 
amount of penalty determined, the assistant chief 
shall forward the proposal to the administrative 
penalty monitor for processing. If the assistant 
chief recommends training in lieu of an 
administrative penalt\' pursuant to G.S. 13 ID- 
34(gl), the recommendation shall be forwarded 
with the proposal. 

(c) The Depanment shall notify the licensee by certified 
mail within 10 working days from the time the proposal is 
received by the administrative penalty monitor that an 



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administrative penalty is being considered. 

(d) The licensee shall have 10 working days from receipt 
of the notification to provide both the Department and the 
county department of social services any additional 
information relating to the proposed administrative penalty. 

(e) If the penalty recommenda t ion is classifi e d as a Ty p e D 
violation and is not a r e p eat violation as defined by G.S. 
131D-34, the licensee shall be notified of the t y p e and 
amount of the p enalty and may acce p t the r ecommendation 
instead of review by the Penalty Review Committee. — If the 
penalty recommenda t ion is accep t ed, the licensee must notify 
the administ r ative penalty monito r by certified mail within 
five working days following receipt of the recommendation. 
The licensee mus t include payment of the penalty with the 
notification. If p ayment is not received, the r ecommendation 
shall be forwarded to the Penalty Review Committee. If a 
facility fails to correct a Tvpe A or a Type B violation within 
the time specified on the plan of correction, an assistant chief 
of the Group Care Licensure Section shall make a decision on 
the amount of penalty pursuant to G . S . 1 3 1 D-34(b )( 1 ) and (2 ) 
and submit a penalty proposal for consideration by the 
Penalty Review Committee. 

ff) — The — Penalty Review Committee must review a 
recommended p enalty when : it is a Ty pe A violation ; is a 
Type D violation that has been pr eviously cited du r ing the 
previous 12 months or within t he time period of th e pr evious 
licensure ins p ection, which e ve r time is longer; o r is a Ty p e D 



review by the full Penalty Review Committee at a me e ting 
sch e duled for the following month. 

fr)(f) The ftitt Penalty Review Committee shall consider 
Type A violations and non- r e p eat Type A and Type B 
violations r efe rr ed — by — the — Penalty — Review — Committ e e 
subconmiittec. that have not been corrected within the time 
frame specified on the plan of correction. Providers, 
complainants, affected parties and any member of the public 
may attend foH- Penalty Review Committee meetings. Upon 
written request of any affected party for reasons of illness or 
schedule conflict, the department may grant a delay until the 
following month for Penalty Review Committee review. The 
Penalty Review Committee chair may ask questions of any of 
these persons, as resources, during the meeting. Time shall 
be allowed during the meeting for individual presentations 
which provide pertinent additional information. The order in 
which presenters speak and the length of each presentation 
shall be at the discretion of the Penalty Review Committee 
chair. 

<4r» (g) The Penalty Review Committee and the Penalty 
R e vi e w Conmiittee subcommittee shall have for review the 
entire record relating to the penalty r ecommendation. 
recommendation. The Penalty Review Committee and the 
P e nalty Review Committee subcommittee and shall make 
recommendations after review of administrative penalty 
proposals, any supporting evidence, and any additional 
information submitted by the licensee as described in 



vi o la t ion as pr ovided in Parag r a p h (e) of this Rule which is Pa r ag r a p h (d) of this Rul e t hat may have a bearing — on the 



no t acce p t e d by the licensee. 



proposal such as documen t a t ion not available du r ing th e 



(5) — A subcommittee of the Penalty Revi e w Conmiit t cc complaint investigation o r monito r ing o r su r vey visit, a ction 



co nsis t ing of fou r commi t tee members assigned by — the 
Penalty R e vi e w Committee chai r shall meet to ini t ially r eview 

non-repea t — Type — B — violations. The — Penalty — Review 

Conmiittee chair shall a pp oin t t he subcommit t ee chai r and 
shaH — be an ex-officio membe r of the P e nalty — Revi e w 
conmiittee subcommi t tee. — Provide r s, complainants, affected 
p a rt i e s and any membe r of the p ublic may attend this 

meeting. The adminis t ra t ive penalty — monitor shall be 

r es p onsible fo r informing parties of these mee t ing dates with 
the exce p tion that the agency which conduc te d the complain t 
investigation — shaH — be — responsible — for — no t ifying — the 
complainant, if any. 

th) — Tim e shall be allowed during the Penalty Review 

committ e e subcommittee meetings for individual 

pr esentations conce r ning pr o p osed p enalties. — The total time 
allow e d for p resentation conce r ning each facility, t h e o r d e r in 
which presente r s shall speak and length of p resentations shall 
be — determined — by — the — Penal t y — Review — Commi t tee 
subcoimnittec chair. 

ft) — The administrative penalty monito r shall have five 
wo r king days from the meeting date t o notify the facility and 
involved p arties of p enalty r ecomm e ndations made by the 
Penalty Review Committee subcommittee with the e xc ep tion 
that the agency which conducted the complaint investigation 
shall be r es p onsible for notifying the com p lainant, if any. 
These recommendations including the vote of the Penalty 
Review Conmiittcc subcommittee shall be submitted fo r 



t aken t o co rr ect the viola t ion and p lans to pr event — the 
viola t ion from recurring. Paragraph (d) and the factors 
specified in G.S. 131D-34(c). 

ffi(h) There shall be no taking of sworn testimony nor or 
cross-examination of anyone during the course of the Penalty 
Review Conmiittee subcommittee o r full Penalty Review 
Committee meetings. 

(m)£ii If the Penalty Review Committee determines that 
the licensee has violated applicable rules or statutes, the 
Penalty Review Committee shall recommend an 
administrative penalty ty p e and amoun t for each violation 
pursuant to G.S. 131D-34. Recommendations for 
domiciliary adult care home penalties shall be submitted to 
the Chief of the Domiciliary and Group Care Licensure 
Section who shall have five working days from the date of the 
Penalty Review Committee meeting to determine and impose 
administrative penalties for each violation or require staff 
training pursuant to G.S. 131D-34(gl) and notify the licensee 
by certified mail. 

iri)iXi The licensee shall have 60 days from receipt of the 
notification to pay the penalty or must file a petition for a 
contested case with the Office of Administrative Hearings 
within 30 days of the mailing of the notice of penalty 
imposition as provided by G.S. 131D-34. 



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History Note: Authority G.S. 131D-2; 131D-34: 143B-153: 
Ejf. December 1. 1992: 

Amended Eff. March 1. 1995: December 1. 1993: 
Temporary.- Amendment Eff. Decembers. 1997. 

******************** 
Rule-making Agency: Social Services Commission 
Rule Citation: 10 NCAC 42R .0201 
Effective Date: Decembers. 1997 
Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 143B-153; 1993 S.L., 
c. 591. s. 2(a): S.L. 1997-443 

Reason for Proposed Action: The cost of providing adult 
day care and adult day health has increased since the last 
increase to the maximum rates (July 1994), therefore, the 
maximum rates must be increased to come closer to the 
provider's actual costs. The maximum rate for transportation 
has not been increased since the early 19S0's. which has 
caused providers to operate at a loss when transportation is 
provided to participants. A separate rate is being established 
for adult day health serxices in recognition of the higher costs 
of providing this level of care and in order to match the rate 
being paid by the Division of Medical Assistance for the same 
service. The North Carolina General Assembly expanded the 
amount of SSBG/State funds available to the State Adult Day 
Care fund, allowing for the rate increases without reducing 
the numbers of clients to be sened. 

Comment Procedures: Anyone wishing to comment should 
contact Shamese Ransome, APA Coordinator, Social Services 
Commission. NC Division of Social Services, 325 N. 
Salisbury- St.. Raleigh, NC 27603, phone 919/733-3055. 

CHAPTER 42 - INDIVIDUAL AND FAMILY 
SUPPORT 

SUBCHAPTER 42R - ADULT DAY CARE- 
STATE FUND 

SECTION .0200 - STATE ADULT DAY 
CARE FUND 

.0201 NATURE .AND PURPOSE OF 

STATE ADULT DAY CARE FUND 

(a) The State Adult Day Care Fund shall be used for adult 
day care and adult day health senices provided through 
count) departments of social senices for the purpose of 
enabling people to remain in or return to their own homes. 

(b) The fund shall be used to increase state participation in 
the costs of this sersice 

(c) The maximum rate for the purchase of adult da) care 



serMces under a vendor agreement shall not exceed five 
hund r ed dollars ($500 00) p e r month, of which fou r hundred 
and fift>-fn ' e dolla r s (S4 5 5 00) shall be fo r the p urchase of 
daily ca r e and forty - five dolla r s ($45.00) — shall be fo r 
trans p o r tation fi\e hundred sixt\-five dollars ($565 00) per 
month, of which fi\e hundred dollars (S500 00) shall be for 
the purchase of dailv care and si.xtv-five dollars ($65 00) shall 
be for transportation. The ma.ximum rate for the purchase of 
adult day health serMces under a \endor agreement shall not 
exceed se\en hundred fifteen dollars ($715.00) per month, of 
which six hundred fift\- dollars ($650 00) shall be for the 
purchase of dailv care and sixts-five dollars ($65 00) shall be 
for transportation. Adult day health senices maN only be 
purchased for an indi\idual following a preadmission health 
assessment as specified in 10 NCAC 42Z .0604rb)(2) (A) and 
a determination that the indi\ idual needs one or more senices 
delineated in 10 NCAC 42Z 0802 (a)(1) through (3) 

History Note: Filed as a Temporary Amendment Effective 

July 27. 1994 for a period of 180 days or until the permanent 

rule becomes effective, whichever is sooner; 

Authority G.S. 143B-153; 1993 S.L, c. 591, s. 2(a): S.L. 

1997-443: 

Eff. January 1. 1982: 

Amended Eff . December 1, 1994: Julx 1, 1990; 

Temporary Amendment Eff. December 8. 1997. 



TITLE 13 - DEPARTMENT OF LABOR 

Rule-making Agency: North Carolina Department of 

Labor, Boiler & Pressure Vessel Division 

Rule Citation: 13 NCAC 13 .0213 

Effective Date of Temporary Rule: December 10, 1997 

Findings Reviewed and Approved by Julian Mann, III: 

Authority for the rule-making: G.S. 95-69.11 

Effective Date of Permanent Rule: August 1, 1998 

A Public Hearing h/7/ be conducted at 10:00 a.m. on 
Februan,' 2. 1998 at the 4 West Edenton Street, Suite 238, 
Raleigh, NC. 

Reason for Proposed Action: The Uniform Boiler and 
Pressure Vessel Act [G.S. Chapter 95. Article 7A] (the Act) 
charges, directs, and empowers the Commissioner of Labor 
and the Director of the Boiler and Pressure Vessel Division to 
carry out the provisions of the Act and to establish and collect 
reasonable fees to cover the operating expenses of the 
Division. Tfiis amendment to 13 NCAC 13 .0213 adjusts the 
fees established per the Act. The objective of the amendment 
is to protect public safety by ensuring that sufficient finds are 
available to accomplish the requirements of the Act and the 



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related 13 NCAC 13 .0200 rules. Deputy Commissioner for Legal Affairs. The address is 4 

We5f Edenton St.. Raleigh, NC 27601-1092 or fax (919) 715- 

Comment Procedures: All interested and potentially 5629. 
affected persons or parties are encouraged to make their 

views known to the Department of Labor whether in support Fiscal Note: This Rule does affect the expenditures or 

of or opposed to any and all provisions of this rule. Written revenues of state and local government funds. This Rule does 

comments, data, or other information relevant to this rule not have a substantial economic impact of at least five million 

must be submitted within 30 days (February 2, 1998). Such dollars ($5,000,000) in a 12-month period, 
materials may be submitted to Ms. Ranee Sandy, Assistant 

CHAPTER 13 - BOILER AND PRESSURE VESSEL 

SECTION .0200 - ADMINISTRATION 

.0213 CERTinCATE AND INSPECTION FEES 

(a) A twenty five dollar ($20.00) (S25.00) certificate and processing fee for each boiler or pressure vessel inspected by an 
Insurance Inspector and found to be in compliance with the rules in this Chapter shall be paid to the North Carolina Department 
of Labor. 

(b) An inspection and certificate fee shall be paid to the North Carolina Department of Labor for each boiler or pressure 
vessel inspected by a deputy inspector as follows: 

tii External Ins p ection 

(A^ — p re ssu re vessels $25.00; 

t&l boilers $35.00. 

f2) Internal Ins p ection 

fA) v e ssel ent r y not r equi r ed $50.00; 

fB) vessel en tr y r equi r ed $100.00. 

f9) Insp e ctions perform e d outside of normal working hours shall be conside r ed s p ecial inspections and t he a p plicable fees 

shall a pp ly, including the fee fo r wo r king ou t side of normal working hours. 

Boilers - An inspection of a boiler where the heating surface is: External Inspection Internal Inspection 

Less than 500 sa. fL $40.00 $70.00 

500 or more sq. ft. but less than 5000 sq. ft. $100.00 $200.00 

5000 or more sq. ft. $250.00 $400.00 

Pressure Vessels - An inspection of a pressure vessel, other External Inspection Internal Inspection 

than a heat exchanger, where the product of measurement in feet 
of the diameter or width, multiplied by its length is: 

Less than 20 $30.00 $35.00 

20 or more but less than 50 $40.00 $50.00 

50 or more but less than 70 $70.00 $100.00 

70 or more $100.00 $150.00 

Heat Exchang ers - An inspection of a heat exchanger, where External Inspection 

the heating surface is: 

Less than 500 sq. ft. $40.00 

500 or more sq. ft. but less than 1000 sq. ft. $50.00 

1000 or more sq. ft. but less than 2000 sq. ft. $75.00 

2000 or more sq. ft. but less than 3000 sq. ft. $100.00 

3000 or more sq. ft. $125.00 



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Note: Inspections perform ed outside of norma] working hours shall be considered special inspections and the applicable fees 
shall apply, includmg the fee for working outside of normal working hours. 



(c) A fee of snrty seventy dollars (S60.00) (S70.00) per 
hour, including travel time, plus expenses including travel, 
hotel and meals shall be paid to the North Carolina 
Department of Labor for each special inspection [.0101(27)]. 

(d) A fee of two hundred forty fifty dollars ($240.00) 
(S250.00) per one-half day (four hours) or any part of 
one-half day or four hundred twent\' dollars (S400.00) 
($420.00) for one day (four to eight hours) plus, in either 
case, all expenses including travel hotel, and meals shall be 
paid to the Nonh Carolina Department of Labor for each 
shop inspection [.0101(26)]. 

(e) A fee of two hund r ed eighty three hundred dollars 
($280.00) (5300.00) per one-half day (four hours) or any pan 
of one-half day or four hundred srcty eighty dollars ($460.00) 
(5480.00) for one day (four to eight hours), plus, in either 
case, all expenses including travel hotel, and meals shall be 
paid to the North Carolina Department of Labor for each 
nuclear inspection. 

(f) A fee of three hundred t wenty fifty dollars ($320.00) 
(5350.00) per one-half day (four hours) or any pan of 
one-half day or five hundred thrrty fifty dollars ($530.00) 
(5550.00) for one day (four to eight hours), plus, in either 
case, all expenses including travel hotel, and meals shall be 
paid to the North Carolina Department of Labor for audits. 

(g) Fees for inspections and audits performed by the 
Director, his designee, or a deputy inspector outside of 
normal working hours or in excess of eight hours per 
inspection visit shall include an additional thirty dollar 
(530.00) fee per hour in addition to the normal inspection or 
audit fee. 

(h) Printed information derived from the database for 
boilers and pressure vessels maintained by the Division, is 
available for public scrutiny. Charges for providing this 
service shall be payable upon receipt of invoice to the North 
Carolina Department of Labor. Charges for this service are 
as follows: 

(1) Requests for database information for which the 
Division has created the information selection 
criteria and printout format for its own use, and 
which can be furnished without the need for special 
programming will be furnished for twenty dollars 
(520.00) plus twenty-five cents (50.25) per page. 

(2) Requests for database information which requires 
special selection criteria or printout format, and 
which requires the need for special programming 
services to derive the requested information or 
format, will be furnished for seventy-five dollars 
(575.00) plus twenty-five cents (50.25) per page. 

(i) Copies of inspection reports or other inspection records 
may be provided upon written request. Copies of these 
records are available for fifteen dollars (515.00) per request 
and twenty-five cents (50.25) per page. 



Eff. May 29. 1981; 

Amended Eff. January 1. 1995; March 2, 1992; September 1, 

1986; 

Temporary Amendment Eff. March 11, 1997; 

Temporary Amendment Eff. March 11, 1997 expired on 

December 27, 1997; 

Temporary Amendment Eff. December 10. 1997. 



TITLE 15 A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



Rule-making Agency: 

Commission 



North Carolina Wildlife Resources 



Rule Citation: 15A NCAC lOF .0311. .0333, .0360 

Effective Date: January 1, 1998 

Findings Reviewed and Approved by: Julian Mann, III 

Authority for the rule-making: G.S. 75A-3; 75A-15 

Reason for Proposed Action: Rule .0311 - The Vance 
County Board of Commissioners initiated the no-wake zone 
pursuant to G.S. 75A-15, to protect public safety in the area 
by restricting vessel speed. Rule .0333 - The Lake Wylie 
Marine Commission initiated the no-wake zone pursuant to 
G.S. 75A-15, to protect public safety in the area by 
restricting vessel speed. Rule .0360 - The Graham County 
Board of Commissioners initiated the no-wake zone pursuant 
to G.S. 75A-15, to protect public safety in the area by 
restricting vessel speed. 

Comment Procedures: The North Carolina Wildlife 
Resources Commission has the authority to adopt temporary 
rules pursuant to S.L. 1997-0403. This temporary rule is 
adopted following the public hearing and public comment 
period established for permanent rule adoption. A public 
hearing was held on October 16, 1997 for the permanent rule 
and the record of hearing for public comment was closed on 
October 31. 1997. The submission for permanent rule is on 
file with the Rules Review Commission. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER 
SAFETY REGULATIONS 



Histor,- Note: Authorit\- G.S. 95-69.11; 



.0311 GRANVILLE: VANCE AND WARREN 



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COUNTIES 

(a) Definitions. In addition to the definitions set forth in 
Paragraph (b) of Rule .0301 of this Section, the following 
definitions shall apply in this Rule: 

(1) Corps. Corps of Engineers, United States Army; 

(2) Reservoir. John H. Kerr Reservoir in Granville, 
Vance and Warren Counties. 

(b) Speed Limit Near Ramps. No person shall operate a 
vessel at greater than no-wake speed within 50 yards of any 
concrete boat launching ramp located on the reservoir in said 
counties. 

(c) Speed Limit in Mooring Areas. No person shall 
operate a vessel at greater than no-wake speed while within a 
designated mooring area established by or with the approval 
of the Corps on the waters of the reservoir in said counties. 

(d) Restricted Swimming Areas. No person operating or 
responsible for the operation of a vessel shall permit it to 
enter any designated swimming area established by or with 
the approval of the Corps on the waters of the reservoir in 
said counties. 

(e) Speed Limit at Kimball Point. No person shall operate 
a vessel at greater than no-wake speed within 50 yards of the 
shoreline in the northernmost cove of the Kimball Point 
Recreation Area in the reservoir, such recreation area being at 
the western end of SR 1204 in Warren County. 

(f) Speed Limit at Lower Mill Creek. No person shall 
operate a vessel at greater than no-wake speed beginning at a 
point on the eastern side of Lower Mill Creek where it 
intersects the North Carolina - Virginia state line, running 
across the creek with said state line and then running in a 
southerly direction on both the east and west sides of the 
creek to the head waters and including all waters of the creek 
south of the state line. 

£g} Speed Limit at Kerr Lake Methodist Campground. No 
person shall operate a vessel at greater than no-wake speed 
beginning 50 yards north and ending 50 yards east of the Kerr 
Lake Methodist Campground. 

{h]tg) Placement and Maintenance of Markers. The Corps 
is designated a suitable agency for placement and maintenance 
of markers implementing this Rule. The perimeters of 
designated swimming areas must be marked with float lines 
which, in conjunction with the shoreline, form completely 
enclosed areas. In addition, supplementary standards as set 
forth in Rule .0301(g)(2) to (7) and (9) of this Section shall 
apply. 

History Note: Authority G.S. 75A-3; 75A-15; 
Eff. February 1. 1976; 

Amended Ejf. December 1, 1994; March 25, 1978; 
Temporary Amendment Eff. January 1. 1998. 

.0333 MECKLENBURG AND GASTON COUNTIES 

(a) Regulated Areas. This Rule applies only on that 
portion of the waters of Lake Wylie which lies within the 
boundaries of Mecklenburg and Gaston Counties and to the 
restricted zones indicated by Paragraphs (b), (c), (d), (e), (0, 
igi, (hi, liL and Ij} (g) and (h) of this Rule on such waters. 



(b) Speed Limit Near Ramps. No person shall operate a 
vessel at greater than no-wake speed within 50 yards of any 
public boat-launching ramp in Mecklenburg County. 

(c) Speed Limit Near Piers. No person shall operate a 
vessel at greater than no-wake speed limit within 50 yards of 
any pier operated by Mecklenburg County for public use. 

(d) Speed Limit at McDowell Park. No person shall 
operate a vessel at greater than no-wake speed on the waters 
of the coves adjoining McDowell Park and the Southwest 
Nature Preserve in Mecklenburg County, including the 
entrances to the coves on either side of Copperhead Island. 

(e) Speed Limit at Gaston County Wildlife Club Cove. 
No person shall operate a vessel at greater than no-wake 
speed on the waters of the cove at the Gaston County Wildlife 
Club on South Point Peninsula in Gaston County. 

(f) Speed Limit in Mooring Areas. No person shall 
operate a vessel at greater than no-wake speed while within a 
marked mooring area established in Mecklenburg County 
with the approval of the Executive Director, or his 
representative. 

(g) Restricted Swimming Areas. No person operating a 
vessel shall permit it to enter any marked swimming area 
established in Mecklenburg County with the approval of the 
Executive Director, or his representative. 

(h) Speed Limit Near Boating Facilities. No person shall 
operate a vessel at greater than no-wake speed within 50 
yards of any boat launching ramp, dock, pier, marina, boat 
storage structure or boat service area on that part of Lake 
Wylie, including the South Fork River arm, which is located 
in Gaston County. 

(i) No person shall operate a vessel at greater than no-wake 
speed within the area 250 feet to the north and 150 feet to the 
south of the Buster Boyd Bridge on Lake Wylie. 

(jj Speed Limit Near Highway 27 Bridge. No person shall 
operate a vessel at greater than no-wake speed beginning 50 
yards north of the NC 27 Bridge and extending 50 yards 
south of the southernmost of two railroad trestles immediately 
downstream from the NC 27 Bridge. 

(k)ff> Placement and Maintenance of Markers. The Boards 
of Commissioners of Mecklenburg County and Gaston 
County are designated suitable agencies for placement and 
maintenance of markers implementing this Rule, subject to 
the approval of the United States Coast Guard and the United 
States Army Corps of Engineers. With regard to marking the 
restricted zones indicated in this Rule, all of the 
supplementary standards listed in Rule .0301(g) of this 
Section shall apply. 

History Note: Authority G.S. 75A-3; 75A-15; 

Eff. July 1. 1980; 

Amended Eff. July 1, 1994; June 1, 1985; June 1, 1984; 

March 1, 1983; 

Temporary Amendment Eff January 1. 1998. 

.0360 GRAHAM COUNTY 

(a) Regulated Area. This Rule applies to the waters and 
portions of waters described as follows: 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1187 



TEMPORARY RULES 



(1) Lake Santeetlah Boat Dock on Lake Santeetlah in 
Graham County. 

(2) Entrance of Fontana Boat Dock in Fontana Lake in 
Graham County. 

(3) Thomas Boat Dock on Fontana Lake in Graham 
County. 

(4) Crisp's Boat Dock, Panther Creek on Fontana Lake in 
Graham County. 

(b) Speed Limit. No person shall operate a vessel at 
greater than no-wake speed within 50 yards of the regulated 
areas as described in Paragraph (a) of this Rule. 

(c) Cheoah Point Swimming Area. Lake Santeetlah ; No 
person shall operate a vessel within the Cheoah Point 



Swimmmg Area which begins at the head of Cheoah Point 
Cove and extends to the mouth of the Cove as designated by 
marker buoys and float lines. 

(d)fc-> Placement and Maintenance of Markers. The 
Graham County Board of Commissioners is designated as a 
suitable agency for the placement and maintenance of markers 
implementing this Rule. 



History Note: Authority G.S. 75A-3; 75A-15; 

Eff. May 1. 1989; 

Amended Eff. February 1, 1996; February 1, 

September 1, 1989; 

Temporary Amendment Eff. January L. 1998. 



1994; 



1188 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. January 15. 1998. 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any 
rule before the Commission should submit those comments to the RRC staff, the agency, and the individual 
Commissioners by Mondaw Januar\' 12. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from 
the Rules Review Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff 
and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Philip O. Redwine - Chairman 

Jim Funderburke 

Vemice B. Howard 

Teresa L. Smallwood 

David Twiddy 



Appointed by House 

Paul Powell - Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 

Anita White 



RULES REVIEW COMMISSION MEETING DATES 



January 15, 1998 
February 19,1998 



March 19, 1998 
April 15, 1998 



RULES REVIEW OBJECTIONS 



COMMERCE 



Community Assistance 

4 NCAC 19L .0401 - General 

4 NCAC 19L .0404 - Grant Category Allocation 

4 NCAC 19L .0505 - Selection Criteria 

4 NCAC 19L .0707 - Eligibility Requirements 

4 NCAC 19L .0708 - Selection Criteria 

4 NCAC 19L.0911 - Recordkeeping 

4 NCAC 19L.1009- Housing Rehabilitation 

4 NCAC 19L .1011 - Lead-Based Paint 

4 NCAC 19L .1303 - Selection Criteria 

4 NCAC 19L.1703 - Selection Criteria 

4 NCAC 19L . 1804 - Size of Loan Approvals 

4 NCAC 19L . 1805 - Selection Criteria 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Coastal Resources Commission 



15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7H 
15A NCAC 7M 



.1104 - General Conditions 
.1304 - General Conditions 
.1404 - General Conditions 
. 1504 - General Conditions 
. 1 704 - General Conditions 
.1804 - General Conditions 
.1904 - General Conditions 
. 2004 - General Conditions 
.2104 - General Conditions 
. 0303 - Policy- Statements 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 
11/20/97 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



II89 



RULES REVIEW COMMISSION 



Health Services 

15A NCAC 18A .1938 - Responsibilities 

Agency Revised Rule 
15A NCAC 18A . 1958 - Non-Ground Absorption Sewage Treatment Systems 

Agency Revised Rule 

Soil and Water Conservation 

15A NCAC 6E .0104 - Best Management Practices Eligible for Cost Share Payments 

Agency Responded 
15A NCAC 6E .0105 - Cost Share and Incentive Payments 

Agency Responded 

Water Pollution Controls Systems 

15A NCAC 8F .0201 - Duties and Requirements of Owners 

No Response from Agency 

Agency Revised Rule 
15A NCAC 8F .0203 - Duties and Requirements of an Operator in Charge 

No Response from Agency 

Agency Revised Rule 



RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


09/18/97 


Obj. Cont'd 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


09/18/97 


Obj. Cont'd 


10/16/97 


RRC Objection 


11/20/97 



HUMAN RESOURCES 



Facility Services 

10 NCAC 3D .2001 - 

Agency Revised 
10 NCAC 3D .2101 - 

Agency Revised 
10 NCAC 3D .2102 - 

Agency Revised 
10 NCAC 3D .2105 - 

Agency Revised 
10 NCAC 3D .2106 - 

Agency Revised 
10 NCAC 3D .2201 - 

Agency Revised 
10 NCAC 3D .2303 - 

Agency Revised 
10 NCAC 3R .3073 - 
10 NCAC 3R .3074 - 
10 NCAC 3R .3081 - 



Definitions 

Rule 

Level I Trauma Center Criteria 

Rule 

Level II Trauma Center Criteria 

Rule 

Initial Designation Process 

Rule 

Renewal Designation Process 

Rule 

Denial, Probation, Vol. Withdrawal/Rev /Trauma Ctr Designation 

Rule 

Regional Trauma System Policy Development 

Rule 

Dem/Proj /Pediatric Nursing Care Need Deter. (Review Cat. G) 

Home Health Agcy Off. Need Determination (Review Cat. F) 

Policies for Inpatient Rehabilitation Ser\'ices 



RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


10/16/97 


Obj. Removed 


11/20/97 


RRC Objection 


11/20/97 


RRC Objection 


11/20/97 


RRC Objection 


11/20/97 



Medical Assistance 

10 NCAC 26B .0113 - NC Medicaid Criteria/Cont'd Acute Stay /Inpatient Psych. Facility 
Rule Withdrawn by Agency 

PUBLIC INSTRUCTION 

16 NCAC 6C .0307 - Certificate Renewal 

No Response from Agency 
16 NCAC 6D .0103 - Graduation Requirements 

No Response from Agency 
16 NCAC 6D .0301 - Testing Requirements and Opportunities 

No Response from Agency 
16 NCAC 6G .0305 - End-of-Course Tests 

No Response from Agency 
16 NCAC 6G .0306 - Testing Code of Ethics 

No Response from Agency 



1190 



NORTH CAROLINA REGISTER 





09/18/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


RRC Objection 


10/16/97 


Obj. Cont'd 


11/20/97 


January 2, 1998 


12:13 



RULES REVIEW COMMISSION 



16 NCAC 6G .0307 - Assistance Teams 

No Response from Agency- 
16 NCAC 6G .0308 - Due Process Protections 

No Response from Agency 

SPEECH AND LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS 

21 NCAC 64 .1002 - General Requirements 

21 NCAC 64 .1004 - Authorized Tasks of Speech-Language Pathology Assistants 



RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 



RRC Objection 
RRC Objection 



10/16/97 
11/20/97 
10/16/97 
11/20/97 



11/20/97 
11/20/97 



) 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1191 



CONTESTED CASE DECISIONS 



1 his Section contains the fidl text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge by- 
contacting the Office of Administrative Hearings, (919) 733-2698. 



OFHCE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMIN ISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Grav 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Dolores O. Smith 



AGENCY 

.VDNONISTRATION 

E, Edward Gamhill v Department of Administration 

ALCOHOLIC BE\'ER.\GE CO.NTROL CO^I^^SSIO^ 

Michael's Mmi Mart v .Alcoholic Beverage Control Commission 
Everetie Craig Hornbuckle v Alcoholic Beverage Control Commission 
Saleh Ahmed All Futhah v. Alcoholic Beverage Control Commission 
Caroljn T Ray v Alcoholic Beverage Control Commission 
.Alcoholic Beverage Control Commission v. Fast Fare. Inc. 
Alcoholic Beverage Control Commission v Mendoza Enterprises. Inc. 
Paul Tyler IV Enterprises. Inc., .Alpha Vinson T A Mirrors (Sid's 

Showgirls) V. Alcoholic Beverage Control Commission 
and 

City of Goldsboro 
and 

Gurnan Khera 
George Robert Scott v. Alcoholic Beverage Control Commission 
Nasar Sader v. Alcoholic Beverage Control Commission 
.Alcoholic Beverage Control Commission v. Paradise Landing. Inc. 
OFFISS. Inc. V Alcoholic Beverage Control Commission 
.Alcoholic Beverage Control Commission v. Altaf Hussain 
Alcoholic Beverage Control Commission v Robert Johnson 
.Alcoholic Beverage Control Commission v. Masonboro County Store. Inc. 
Daniel Gary Ledbetter v, .Alcoholic Beverage Control Commission 
.Alcoholic Beverage Control Comm. v. Raymond Lee 
Alcoholic Beverage Control Comm v. Percy Daniel Bowen 
.Alcoholic Beverage Control Commission v. Bridgette Dee Williams 
■Alcoholic Beverage Control Commission v. Westside Tavern. Inc 
-Alcoholic Beverage Control Commission v Grove Park Inn Resort. Inc. 
Sunset Enterprises. Inc. v Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Kimberly Loeite Hankins 



CASE 




DATE OF 


PLBLISHED DECISION 


NTMBER 


ALJ 


DECISION 


REGISTER CIT.4TION 


97 DOA 0364 


Reilly 


09/10/97 




92 ABC 1601 


Gray 


08/18/97 




93 .ABC 0987 


Gray 


08/18/97 




94 .ABC 0264 


Gray 


08/18/97 




95 ABC 0429 


Gray 


09/23/97 




96 ABC 0483 


Morrison 


06/18/97 




96 ABC 1196 


Gray 


08/26/97 




96 ABC 1804 


Morrison 


09/29/97 





96 ABC 1995 

97 .'^BC 0030 
97 ABC 0031 
97.-kBC0118 
97 ABC 0312 
97 ABC 0321 
97 ABC 0432 
97 ABC 0443 
97 ABC 0488 
97 .ABC 0495 
97 .\BC 0576 
97 ABC 0586 
97 .\BC 0706 
97 ABC 0846 
97 .-SlBC 0897 



CORRECTION 

David M. Boone ' 



Correction. Div. of Prison .■\dmin. Remedv Procedure 97 DOC 0534 



Reilly 

Phipps 

Gray 

Gray 

Mann 

Gray 

Reilly 

Gray 

Smith 

Morrison 

Phipps 

Phipps 

Morrison 

Gray 

Grav 



Morrison 



CRIME CONTROL .\NT) Pl^LIC SAFETY 

Delia Sherrod v Crime Victims Compensation Commission 96 CPS 0300 Chess 

Mary .A. Kearney v CPS. Victims Compensation Commission 96 CPS 2033 Becton 

Mae .Allen .Murray v. Crime Victims Compensation Commission 96 CPS 21 10 Chess 

Beverly McLaughlin V Crime Victims Compensation Commission 97 CPS 0170 Phipps 

Malcolm \V Fields v. Crime Victims Compensation Commission 97 CPS 0360 Chess 

Rodney P. Hodge v. Crime Victims Compensation Commission 97 CPS 0449 Reilly 



12/05/97 
10/08/97 
06/13/97 
09/17/97 
07/29/97 
08/25/97 
09/09/97 
07/08/97 
10 '30/97 
09/24/97 
09/04/97 
09/17/97 
09/ 15. '97 
12/10/97 
10/06/97 



06/16/97 



07/18/97 
09/26/97 
10/31/97 
08/29/97 
09/12/97 
07/01/97 



12:07 NCR 609 



II92 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



) 



► 



AGENCY 

Billy Steen v. Crime Victims Compensation Commission 
Clifford R Pulley v. Crime Victims Compensation Commission 
Curtis Jermaine Newkirk v. Crime Victims Compensation Commission 
Huston Christopher Mason v. Victims Compensation Commission 
Gregory Bynum v Crime Victims Compensation Commission 
Lisa S- Snead v Crime Victims Compensation Commission 
Robert T- Blakeney v Office of Administrative Hearings 
Connie Cowan v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Herbert C Avery v. Environment. HealtJi. and Natural Resources 
Linda Collie v. Lenoir County Health Department 
Leroy Anderson v. County of Moore Department of Health 
EH. Garner v. New Hanover Health Department 
Peter D. McDowell. Sr. v. New Hanover Health Department 
Dowell Gray v. Department of Environment and Natural Resources 
and 
Onslow County Department of Health 
Riggings Homeowners Assoc. Inc. v. Environment. Health, & Natural Res. 
John Ronald Taylor v. Environment. Health. & Natural Resources 
Rick Parker v. Pitt County Health Dept./Mr, Ernie Nichols 
James R. Melvin v. Environment and Natural Resources 
Lee A. Riggs v. Craven County Health Department 
Robert E. Cahoon v. Carteret County Health Department 
John Martin v Environment. Health, and Natural Resources 
John Martin v Environment. Health, and Natural Resources 
Rachel S. Tugwell v. Environment. Health and Natural Resources 
Gilbert T. Davis. Jr. v. Forsyth County Environmental Affairs Dept 

Land Resources 

James H. Lowdermilk & J. Wayne Lowdermilk v. EHNR. Land Res. 

Charles G. Smith v. EHNR, Division of Land Resources 

Henry Yancey Ingram, n & Hope Fanning Ingram v. EHNR, Land Res 

Environmental Management 

Henry G. Daii. Dail Brothers v. EHNR. Environmental Management 

Marine Fisheries 

John A. Trahan v EHNR. Division of Marine Fisheries 



Maternal and Child Health 

Evan's Mini Mart v EHNR. Maternal & Child Health. Nutrition Svcs Sec. 97 EHR 0599 



CASE 




NUMBER 


ALJ 


97 CPS 0472 


Morrison 


97 CPS 0523 


Gray 


97 CPS 0645 


Morrison 


97 CPS 0691 


Becton 


97 CPS 0901 


Reilly 


97 CPS 1025 


Reilly 


97 CPS 1187 


Becton 


97 CPS 1214 


Becton 


96 EHR 0161 


Chess 


96 EHR 0264 


Becton 


96 EHR 1969 


Morrison 


96 EHR 1972 


Gray 


96 EHR 2075 


Gray 


97 EHR 0195*-" 


Gray 


97 EHR 0263 


Reilly 


97 EHR 0275 


Reilly 


97 EHR 0470 


Phipps 


97 EHR 0682 


Phipps 


97 EHR 0851 


Becton 


97 EHR 0878 


Becton 


97 EHR 0993*=' 


Phipps 


97 EHR 0994*=" 


Phipps 


97 EHR 1086 


Becton 


97 EHR 1281 


Smith 


96 EHR 0745 


Gray 


96 EHR 0855 


Gray 


96 EHR 0908 


Gray 


96 EHR 2104 


Gray 


97 EHR 0400 


Chess 



Solid Waste Management 

Loie J. Priddy v. Division of Solid Waste Management. EHNR 



96 EHR 1838 



Water Quality 

Castle Hayne Steering Committee v. EHNR. Division of Water Quality 96 EHR 1731 

and 
New Hanover County Water and Sewer District 

RAYCO Utilities. Inc.. Briarwood WWTP v. EHNR. Div of Water Quality 97 EHR 0018 
RAYCO Utilities, Inc.. Greystone Forrest WWTP v. EHNR. Water Quality 97 EHR 0412 



RAYCO Utilities. Inc.. Melbille Heights MHP 

and 
RAYCO Utilities. Inc.. Penman Heights MHP v EHNR. Water Quality 
RAYCO Utilities. Inc., Melbille Heights MHP 

and 
RAYCO Utilities. Inc . Penman Heights MHP v. EHNR. Water Quality 



97 EHR 0643* 



Phipps 



Morrison 



Mann 



Chess 
Smith 
Smith 



97 EHR 0644*- Smith 



DATE OF 


PUBLISHED DECISION 


DECISION 


REGISTER CITATION 


07/23/97 




08/06/97 




10/03/97 




12/04/97 




10/16/97 




11/10/97 




11/07/97 




12/03/97 




09/23/97 




07/16/97 




07/15/97 


12:03 NCR 223 


08/07/97 




08/07/97 




12/01/97 


12:13 NCR 1222 


08/13/97 




06/09/97 




07/01/97 




09/23/97 




10/02/97 




09/30/97 




10/13/97 




10/13/97 




12/03/97 




11/10/97 




10/30/97 




10/30/97 




10/30/97 




08/27/97 




10/30/97 




07/14/97 




06/20/97 


12:02 NCR 103 


06/30/97 




09/12/97 




10/29/97 




10/29/97 




10/29/97 





) 



HUMAN RESOURCES 

Sampson Health Care Facilities Inc. v. Dept. of Health & Human Services 

John & Veronica Spearman v. Department of Human Resources 

New Beginnings Christian Academy v. Department of Human Resources 

Cindy G Geho v Office of Administrative Hearings. R Marcus Lodge 

Helen Wyman v Department of Human Resources 

DeRothea G Williams d/b/a Dee Williams & Company, a proprietorship v 

Buncombe County Partnership for Children. Inc.. a NC Nonprofit Corp.: 

NC Department of Human Resources [Division of Child Development). 

NC Department of Environment. Health, and Natural Resources [Division 

of Maternal and Child Health] 
Lorraine M. Monroe v Department of Human Resources 97 

Linda Rouse Sharp v. Department of Human Resources 97 

Ocelee Gibson v Department of Human Resources 97 

Larry Patton v Department of Human Resources 97 



96 DHR 0535 


Reilly 


11/06/97 


96DHR 1543 


Chess 


09/12/97 


96 DHR 1925 


Reilly 


08/22/97 


97 DHR 0286 


Chess 


07/23/97 


97 DHR 0407 


Reilly 


08/08/97 


97 DHR 0424 


Morrison 


09/22/97 



DHR 0540 


Gray 


10/30/97 


DHR 0610 


Mann 


08/28/97 


DHR 0658 


Reilly 


07/22/97 


DHR 0829 


Phipps 


10/17/97 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1193 



CONTESTED CASE DECISIONS 



AGENCY 

Riia Faircloih v Department of Human Resources 

Division of Child Development 

New Hanover Cty. Comm Action v DHR. Division of Child Development 
Cindy G, Geho v Human Resources. Division of Child Development 

Division of Facility Services 

Ava McKinney v. DHR, Division of Facility Services 

Mercy Egbuleonu v DHR. Facility Svcs. Health Care Personnel Reg, Sec, 

Mercy Egbuleonu v Human Resources. Division of Facility Services 

Kizzie Cooper v DHR, Facility Svcs, Health Care Personnel Registry Sec. 

Maggie J Barnhill v DHR, Facility Svcs. Health Care Pers. Reg. Sec. 

Emma Faison v DHR, Division of Facility Services 

Eugene Donald Caldwell v DHR, Division of Facility Services 

Patricia Addison v DHR, Facility Svcs, Health Care Personnel Reg. Sec. 

Selena Louise Holley v. DHR. Facility Svcs. Health Care Persl. Reg. Sec. 

Shirley Ebron v DHR. Facility Svcs, Health Care Pers, Reg Sec. 

Claudia K. Thomerson v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 

Janice Ann McClinton v DHR, Facility Svcs, Health Care Pers Reg. Sec. 

Michelle R Griffin v. DHR. Facility Svcs, Health Care Pers Reg Sec. 

Deborah L McBurnie v DHR, Facility Svcs, Health Care Pers. Reg. Sec. 

Kelly M Poole v DHR, Facility Svcs, Health Care Pers Reg. Sec. 

Debbie Williams v. DHR. Fac, Svcs , Health Care Pers, Reg. Sec. 

Therese Victoria Wilson v. DHR, Fac. Svcs, Health Care Pers Reg. Sec. 

Notisha Utley v. DHR, Fac. Svcs, Health Care Pers Reg Sec 

Helen T, Shokoti v Human Resources. Division of Facility Services 

Jen L Anderson v Human Resources. Division of Facility Services 

Susie A Milsap v. DHR. Facility Svcs. Health Care Pers Reg. Sec. 

Glenda Christine Taylor v DHR, Facility Svcs, Health Care Pers Reg. Sec 

Maple Heights Rest Home. Inc. v, DHR. Division of Facility Services 

Lisa Bullard v DHR. Facility Svcs, Health Care Pers Reg Sec, 

Angela D. Johnson v, DHR. Facility Svcs. Health Care Pers. Reg. Sec. 

Cressie D. Mears v DHR, Division of Facility Services 

Mane Emma Wimbush v. DHR, Facility Svcs. Health Care Pers Reg, Sec. 

Himmeler Dcsvaneux v DHR. Fac Svcs, Health Care Pers Reg Sec. 

Tamara Green v DHR, Fac. Svcs. Health Care Pers Reg. Sec, 

Tom Washington v DHR, Division of Facility Services 

Debra Burleson v DHR, Division of Facility Services 

Jean Rossman v DHR, Facility Svcs, Health Care Pers. Reg. Sec. 

Michelle McMahan v. DHR, Division of Facility Services 

Brenda Faye Harris v. DHR. Facility Svcs. Health Care Pers. Reg. Sec. 

Michelle McMahan v. DHR. Division of Facility Services 

Lorena Barbour v, DHR, Facility Svcs, Health Care Pers. Reg. Sec. 

Angela Mae Whited v. DHR. Division of Facility Services 

Vitina Cockrane v, DHR, Facility Svcs, Health Care Pers Reg, Sec, 

Mary Susan McLean v DHR, Fac Svcs, Health Care Pers Reg Sec. 

Dons J Daniels v DHR. Fac Svcs. Health Care Pers Reg. Sec. 

Robin Leigh Robinson v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 

Certificate of Need Section 
Carolina Imaging, Inc/FayetteviUe v. DHR. Facility Svcs, Cert/Need Sec. 

and 
Cumberland Cty Hospital System. Inc . d/li/a Cape Fear Valley Med. Ctr. 

Croup Licensure Section 
Jeffreys Family Care #2 v DHR. Facility Svcs Group Licensure Section 

Division of Medical Assistance 

Dilladys Renee Stover v DHR. Division of Medical Assistance 
Bettye Parson/Tambra Parson v DHR. Div of Medical Assistance 
Robert D & Ronda M. Staton v DHR. Div. of Medical Assistance 



C.4SE 




DATE OF 


PUBLISHED DECISION 


NXIMBER 


ALJ 


DECISION 


REGISTER CITATION 


97 DHR 0900 


Reilly 


08/15/97 




97 DHR 0921 


Phipps 


09/10/97 




97 DHR 0966 


Phipps 


08/29/97 




96 DHR 2061 


Chess 


07/08/97 




97 DHR 0172 


Becton 


07/16/97 




97 DHR 0450 


Gray 


09/02/97 




97 DHR 0459 


Phipps 


06/09/97 




97 DHR 0465 


Gray 


07/30/97 




97 DHR 0471 


Gray 


07/15/97 




97 DHR 0480 


Gray 


10/10/97 




97 DHR 0521 


Mann 


07/25/97 




97 DHR 0524 


Phipps 


08/28/97 




97 DHR 0528 


Gray 


10/02/97 




97 DHR 0551 


Chess 


07/15/97 




97 DHR 0558 


Creech 


10/17/97 




97 DHR 0559 


Gray 


07/30/97 




97 DHR 0608 


Chess 


09/02/97 




97 DHR 0629 


Chess 


09/02/97 




97 DHR 0630 


Gray 


10/01/97 




97 DHR 0632 


Phipps 


08/25/97 




97 DHR 0646 


Phipps 


09/26/97 




97 DHR 0653 


Chess 


08/20/97 




97 DHR 0659 


Gray 


08/19/97 




97 DHR 0667 


Phipps 


08/25/97 




97 DHR 0681 


Gray 


08/29/97 




97 DHR 0717 


Reilly 


10/16/97 




97 DHR 0721 


Chess 


10/09/97 




97 DHR 0723 


Chess 


08/06/97 




97 DHR 0793 


Chess 


08/21/97 




97 DHR 0797 


Phipps 


08/25/97 




97 DHR 0818 


Gray 


10/24/97 




97 DHR 0824 


Becton 


09/29/97 




97 DHR 0847 


Phipps 


12/10/97 




97 DHR 0904 


Phipps 


12/11/97 




97 DHR 0908 


Smith 


09/02/97 




97 DHR 0915*-' 


Mann 


11/13/97 




97 DHR 0938 


Morrison 


10/03/97 




97 DHR 0960*-' 


Mann 


11/13/97 




97 DHR 0999 


Phipps 


09/11/97 




97 DHR 1029 


Becton 


12/10/97 




97 DHR 1066 


Chess 


10/15/97 




97 DHR 1091 


Morrison 


10/21/97 




97 DHR 1126 


Gray 


10/27/97 




97 DHR 1169 


Phipps 


10/31/97 




96 DHR 1570 


Phipps 


06/24/97 


12:02 NCR 95 



97 DHR 0259 


Mann 


06/17/97 


97 DHR 0560 


Mann 


09/16/97 


97 DHR 0656 


Becton 


08/12/97 


97 DHR 0660 


Smith 


09/05/97 



Division of Social Senices 



Child Support Enforcement Section 
Dale P. Sprinkle v Guilford Child Support Agency. Human Resources 
Steven Van Linker v. Department of Human Resources 
Michael R Bryant v Department of Human Resources 
David Lee Chamblee Jr v Department of Human Resources 
John W, Scott V Department of Human Resources 
Michael T Swann v Department of Human Resources 
Ted Wayne Lamb v Department of Human Resources 
Jeffrey Grainger v. Department of Human Resources 
Tollie Woods v Department of Human Resources 
Fred Edward Stafford v. Department of Human Resources 
Joseph R, Grooms Jr. v. Department of Human Resources 



96CRA 1171 


Gray 


08/13/97 


96 CRA 1250*- 


Becton 


07/11/97 


96 CRA 1252 


Phipps 


08/11/97 


96 CRA 1281 


Morrison 


06/16/97 


96 CRA 1287 


Becton 


10/09/97 


96 CRA 1326 


Chess 


06/04/97 


96 CRA 1359 


Gray 


07/10/97 


96 CRA 1376 


Reilly 


08/14/97 


96 CRA 1348*' 


Morrison 


08/04/97 


96 CRA 1407*" 


Reilly 


08/21/97 


96 CRA 1434 


Phipps 


11/18/97 



1194 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



AGENCY 

David N- Jarrett v Depanment of Human Resources 

Warren S. Olson v. Department of Human Resources 

Stanley A. Watson v. Department of Human Resources 

Michael A. Isom v. Department of Human Resources 

Rafael L. Garcia v. Department of Human Resources 

Justin M. Woazeah. Sr, v. Department of Human Resources 

Johnny R. Holden v. Department of Human Resources 

Calvin F. Mizelle v. Department of Human Resources 

Tommy Lee Clark v. Department of Human Resources 

Ander L- Garfield v. Department of Human Resources 

Clarence O. Rams v Department of Human Resources 

Jeremy Baker v. Department of Human Resources 

William T, Harris v Department of Human Resources 

Hal C, Morgan, Jr. v Department of Human Resources 

Paul S. Clonmger v. Department of Human Resources 

Edward Stuteville v. Department of Human Resources 

Tony Peterson, Jr, v Department of Human Resources 

Lee G. Sanders Jr. v. Department of Human Resources 

David Fraizer v. Department of Human Resources 

David Fraizer v. Department of Human Resources 

David Hobson v. Department of Human Resources 

Christopher A. Abney v. Department of Human Resources 

JohnT. Spidell v. Department of Human Resources 

Robert M. Starlmg, Sr. v. Department of Human Resources 

Craig Venson v Department of Human Resources 

David Scott Jordan v. Department of Human Resources 

Lee R Jones v. Department of Human Resources 

Cecil Hall v Department of Human Resources 

Neil G. McGilberry v. Department of Human Resources 

Gregory S. Wolbert v. Department of Human Resources 

William E. Daley Jr. v Wake County Child Support Enforcement 

Dennis Larson v. Department of Human Resources 

Eric L. Harrington v. Department of Human Resources 

Paul F. Gangemi, Sr. v. Department of Human Resources 

Scott M. Rodriguez v. Department of Human Resources 

James Withers v. Department of Human Resources 

Evalina R. Oxendine v Department of Human Resources 

Phillip R. Banner v Department of Human Resources 

Brian K. Norfleet v. Craven County Child Support Office 

Richard H. Reist v. Department of Human Resources 

Patrick Orlando Crump v. Department of Human Resources 

Ronald L. Hadley v. Department of Human Resources 

Garland M. Jessup v. Guilford County Child Support Enforcement 

Anthony LeMar ID v. Department of Human Resources 

Michael A. Norman v. Department of Human Resources 

Walter Hawk v. Department of Human Resources 

Kevin L. Combs v Department of Human Resources 

Johnny Lewis Fields v. Department of Human Resources 

Roger G. Foster v. Department of Human Resources 

Charlie T. Smith v. Department of Human Resources 

Joseph Davis v Department of Human Resources 

Joseph Michael Eubanks v. Deparunent of Human Resources 

Vonzell Barker v. Department of Human Resources 

Charles F King v. Department of Human Resources 

A.C. Nash V. Department of Human Resources 

Curtis Bristol Self v Department of Human Resources 

Ronald Alton Neal v. Department of Human Resources 

Danny Ray Carr v. Department of Human Resources 

Kenneth A. Ingle v. Department of Human Resources 

Norman L. Gatewood v. Department of Human Resources 

Larie Bolton v. Department of Human Resources 

Monty G. Cox v Randolph County Child Support Enforcement Agency 

Steven Van Linker v. Department of Human Resources 

Barry Tukes Sr. v. C.S.E. 

Monty G. Cox v Randolph County Child Support Enforcement Agency 

Harriet Tolson v. Department of Human Resources 

John W. Scott V. Department of Human Resources 

Edgar C. Lewis, Jr v. Department of Human Resources 

Willie L. Berry v. Department of Human Resources 

Tony Orlando Steele v. Department of Human Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AI„I 


DECISION 


REGISTER CITATION 


96 CRA 1438 


Morrison 


07/10/97 




96 CRA 1440 


Phipps 


09/09/97 




96 CRA 1448*" 


Reilly 


08/21/97 




96 CRA 1450 


Becton 


07/11/97 




96 CRA 1451 


Becton 


09/11/97 




96 CRA 1452*' 


Chess 


07/22/97 




96 CR.A 1463 


Mann 


10/16/97 




96 CRA 1476 


Chess 


07/07/97 




96 CRA 1477 


Phipps 


08/13/97 




96 CRA 1479*' 


Morrison 


07/15/97 




96 CRA 1482 


Reilly 


08/21/97 




96 CRA 1491*=° 


Smith 


09/05/97 




96 CRA 1492 


Mann 


11/18/97 




96 CRA 1500 


Smith 


09/05/97 




96 CRA 1502 


Becton 


09/11/97 




96 CRA 1507*" 


Mann 


08/13/97 




96 CRA 1513 


Gray 


10/02/97 




96 CRA 1515 


Reilly 


09/11/97 




96 CRA 1519*'° 


Chess 


07/18/97 




96 CRA 1520*'° 


Chess 


07/18/97 




96 CRA 1522*" 


Phipps 


07/24/97 




96 CRA 1551 


Reilly 


12/08/97 




96 CRA 1567 


Smith 


09/05/97 




96 CRA 1598*^ 


Chess 


11/03/97 




96 CRA 1647 


Morrison 


12/03/97 




96 CRA 1673 


Reilly 


07/18/97 




96 CRA 1720*' 


Phipps 


07/10/97 




96 CRA 1749*' 


Mann 


07/10/97 




96 CRA 1767*' 


Becton 


07/15/97 




96 CRA 1782 


Mann 


11/18/97 




96 CRA 1789 


Reilly 


09/25/97 




96 CRA 1793 


Chess 


06/17/97 




96 CRA 1794 


Mann 


07/19/97 




96 CRA 1809 


Gray 


08/13/97 




96 CRA 1818"' 


Gray 


06/25/97 




96 CRA 1820 


Reilly 


07/24/97 




96 CRA 1825 


Gray 


09/10/97 




96 CRA 1826*=' 


Gray 


09/24/97 




96 CR,-*. 1846 


Phipps 


10/02/97 




96 CRA 1859 


Reilly 


10/21/97 




96 CRA 1866*" 


Gray 


08/18/97 




96 CRA 1892 


Reilly 


07/18/97 




96 CRA 1898 


Becton 


07/11/97 




96 CRA 1905 


Smith 


09/05/97 




96 CRA 1915 


Gray 


09/24/97 




96 CRA 1943 


Phipps 


08/13/97 




96 CRA 1948 


Reilly 


12/08/97 




96 CRA 2085*- 


Smith 


10/02/97 




97 CRA 0043 


Phipps 


06/19/97 




97 CRA 0280 


Reilly 


06/16/97 




97 CRA 0436*'' 


Phipps 


08/11/97 




97 CRA 0477 


Reilly 


07/18/97 




97 CRA 0620 


Becton 


08/12/97 




97 CRA 0720 


Reilly 


07/30/97 




97 CRA 0788 


Gray 


09/10/97 




97 CRA 0974 


Mann 


11/19/97 




97 CRA 1020 


Becton 


10/23/97 




97 CRA 1160 


Reilly 


12.08/97 




97 CRA 1714 


Chess 


09/25/97 




96 CSE 0484 


Chess 


09/23/97 




96 CSE 1220 


Reilly 


08/21/97 




96 CSE 1235*" 


Becton 


08/12/97 




96 CSE 1249*= 


Becton 


07/11/97 




96 CSE 1277 


Mann 


07/01/97 




96 CSE 1278*" 


Becton 


08/12/97 




96 CSE 1280 


Reilly 


08/21/97 




96 CSE 1286 


Becton 


10/09/97 




96 CSE 1299 


Mann 


08/20/97 




96 CSE 1319 


Gray 


06/25/97 




96 CSE 1337 


Mann 


06/30/97 





Consolidated Cases. 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1195 



CONTESTED CASE DECISIONS 



AGENCY 

Carl Locklear v Deparimeni of Human Resources 

Tollie Woods v Deparimeni of Human Resources 

James Earl McLellan v Deparimeni of Human Resources 

Charles L. Raynor v Deparimeni of Human Resources 

Roberi Walker v. Iniercepi Tax Refunds 

Chris M Wilson v. Deparimeni of Human Resources 

Fred Edward Slafford v Deparimeni of Human Resources 

Richard K- Blisard v. Deparimeni of Human Resources 

Slanley A. Waison v, Deparimeni of Human Resources 

Jusiin M. Woazeah, Sr, v, Deparimeni of Human Resources 

William A Underhill v Deparimeni of Human Resources 

Almiron J. Deis v Deparimeni of Human Resources 

Jeremy Baker v Deparimeni of Human Resources 

Alfred Clinion Springs v Deparimeni of Human Resources 

Ander L. Garfield v. Deparimeni of Human Resources 

Ulysses Harris v, Nash Couniy Child Suppori Office and Human Resources 

Edward Siuleville v. Deparimeni of Human Resources 

Gerald A. Jones v Deparimeni of Human Resources 

David Hobson v, Deparimeni of Human Resources 

Gregory D. Simpson v, Deparimeni of Human Resources 

Carl E- Coffey v. Deparimeni of Human Resources 

Donald Ray Archie v. Deparimeni of Human Resources 

John T Spidell v. Deparimeni of Human Resources 

John W. Liverman v. Deparimeni of Human Resources 

John H. Hale, Jr. v. Deparimeni of Human Resources 

Vinceni L- Marlin v. Deparimeni of Human Resources 

Harlie Leonard Hardison v. Deparimeni of Human Resources 

Alton Washington v DHR and Robeson Couniy Child Suppori Enf. Agcy. 

Roberi M. Starling, Sr. v Deparimeni of Human Resources 

David Fraizer v Deparimeni of Human Resources 

Golel Holloway. Jr v Deparimeni of Human Resources 

Jeffrey Pierce v Department of Human Resources 

Patrick Orlando Crump v. Department of Human Resources 

Crystal Lynn Manring-Robertson v. Forsyth County CSE. DSS & DHR 

William C. Rivera v Deparimeni of Human Resources 

David L. Smith v DHR, DSS. CSE and Sampson Couniy CSE 

Lenora McCracken v Department of Human Resources 

Donald Lee Rodgers Sr v Rowan Couniy CSE, DHR, DSS, CSE 

Derrick Sturdivant v Department of Human Resources 

Clyde Williams v. DHR. DSS, CSE, and Pitt Couniy CSE 

Lee R. Jones v. Department of Human Resources 

Cecil Hall v. Department of Human Resources 

Gregory Melton v. Department of Human Resources 

Neil G, McGilberry v Deparimeni of Human Resources 

Devin J- Hello v Department of Human Resources 

Phillip R. Banner v Deparimeni of Human Resources 

Scott M. Rodriguez v Department of Human Resources 

James Withers v. Department of Human Resources 

David M. Greene v. Buncombe County CSE and DHR, DSS, CSE 

Jarmarle Arnold v Department of Human Resources 

Sean HeiLz v. Deparimeni of Human Resources 

Nathan S. Lockharl Sr. v Department of Human Resources 

Scott James Petrill v Department of Human Resources 

Daniel E. Carpenter v Department of Human Resources 

Daniel D. Morse v. Department of Human Resources 

Daryl E. Shankle v. Child Support Enforcement Agency 

Jeffrey William Strama v. Department of Human Resources 

Joseph Fernandez v. Department of Human Resources 

Johnny Lewis Fields v. Department of Human Resources 

Alfred Covington v DHR, DSS, CSE and Burke Couniy CSE 

Tommy L. Hines Sr v, Forsyth County Child Suppori Enforcement 

Kelvin Cherry v. DHR, DSS. CSE, Durham Cty CSE and Wake Cly CSE 

Irvan Jemal Fontenol v. Department of Human Resources 

Pearlie Blakney v. Department of Human Resources 

Leroy Grooms v. Department of Human Resources 

Sarah Chambers v. Deparimeni of Human Resources 

Leroy Grooms v Department of Human Resources 

Pedro Baliazar Jocobo v Department of Human Resources 

Theodore .McCleese v Department of Human Resources 

Gertru Jefferson Ward v. Department of Human Resources 

James Allen Harris v Department of Human Resources 

John C Henderson v. Department of Human Resources 

William A. Rogers v. Department of Human Resources 

Mark R. Kearney v. Department of Human Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


96 CSE 1338 


Mann 


07/07/97 




96 CSE 1340*' 


Morrison 


08/04/97 




96 CSE 1358 


Mann 


10/16/97 




96 CSE 1382 


Becton 


07/11/97 




96 CSE 1384 


Morrison 


07/24/97 




96 CSE 1403 


Morrison 


09/25/97 




96 CSE 1406*'" 


Reilly 


08/21/97 




96 CSE 1446 


Mann 


10/22/97 




96 CSE 1449*" 


Reilly 


08/21/97 




96 CSE 1453*' 


Chess 


07/22/97 




96 CSE 1455 


Mann 


07/18/97 




96 CSE 1456 


Gray 


06/25/97 




96 CSE 1460*=" 


Smith 


09/05/97 




96 CSE 1473 


Reilly 


08/21/97 




96 CSE 1480*' 


Morrison 


07/15/97 




96 CSE 1488 


Becton 


10/14/97 




96 CSE 15C8*" 


Mann 


08/13/97 




96 CSE 1512 


Becton 


09/11/97 




96 CSE 1521*" 


Phipps 


07/24/97 




96 CSE 1527 


Reilly 


06/25/97 




96 CSE 1528 


Reilly 


09/24/97 




96 CSE 1558 


Becton 


07/11/97 




96 CSE 1566 


Smith 


09/05/97 




96 CSE 1568 


Becton 


07/11/97 




96 CSE 1573 


Mann 


10/22/97 




96 CSE 1574 


Gray 


08/04/97 




96 CSE 1578 


Becton 


08/25/97 




96 CSE 1597 


Becton 


10/13/97 




96 CSE 1605*^ 


Chess 


11/03/97 




96 CSE 1610*'" 


Chess 


07/18/97 




96 CSE 1611 


Becton 


07/11/97 




96 CSE 1613 


Mann 


06/30/97 




96 CSE lew*" 


Gray 


08/18/97 




96 CSE 1619 


Becton 


10/13/97 




96 CSE 1622 


Mann 


06/18/97 




96 CSE 1639 


Becton 


10/13/97 




96 CSE 1644 


Mann 


06/30/97 




96 CSE 1667 


Becton 


10/13/97 




96 CSE 1672 


Chess 


10/09/97 




96 CSE 1688 


Becton 


10/13/97 




96 CSE 1719*' 


Phipps 


07/10/97 




96 CSE 1750*' 


Mann 


07/10/97 




96 CSE 1764 


Morrison 


09/17/97 




96 CSE 1766*' 


Becton 


07/15/97 




96 CSE 1774 


Phipps 


07/16/97 




96 CSE 1802*=' 


Gray 


09/24/97 




96 CSE 1817*' 


Gray 


06/25/97 




96 CSE 1821 


Reilly 


08/21/97 




96 CSE 1844 


Becton 


10/06/97 




96 CSE 1853 


Becton 


10/14/97 




96 CSE 1909 


Chess 


07/22/97 




96 CSE 1910 


Phipps 


07/16/97 




96 CSE 1914 


Morrison 


07/30/97 




96 CSE 1917*' = 


Phipps 


07/25/97 




96 CSE 1942 


Chess 


08/19/97 




96 CSE 1977 


Becton 


07/11/97 




96 CSE 2043 


Becton 


07/11/97 


. 


96 CSE 2066 


Chess 


08/21/97 




96 CSE 2084*" 


Smith 


10/02/97 




96 CSE 2086 


Becton 


10/06/97 




97 CSE 0015 


Reilly 


07/18/97 




97 CSE 0027 


Becton 


10/13/97 




97 CSE 0223 


Becton 


07/11/97 




97 CSE 0254 


Phipps 


07/24/97 




97 CSE 0258*' 


Becton 


07/18/97 




97 CSE 0278 


Morrison 


06/16.'97 




97 CSE 0297*' 


Becton 


07/18/97 




97 CSE 0339 


Mann 


10/22/97 




97 CSE 0353 


Morrison 


08/05/97 




97 CSE 0381 


Chess 


08/22/97 




97 CSE 0401 


Mann 


10/16/97 




97 CSE 0408 


Smith 


09/05/97 




97 CSE 0410 


Gray 


06/25/97 




97 CSE 0417 


Reilly 


08/07/97 





1196 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



AGENCY 

Michael J. Powell v. Department of Human Resources 

Joseph Davis v. Department of Human Resources 

James G, Davis v Department of Human Resources 

Randy Gavurmk v Department of Human Resources 

Curtis Leon Mock v. Department of Human Resources 

Daniel E. Carpenter v. Department of Human Resources 

Juan L. Allen v. Department of Human Resources 

Donald Mac Tipton v. Department of Human Resources 

Guy R. Auger v. Brunswick County Child Support Enforcement 

Andrew J. Hough v. Department of Human Resources 

Michael V. Dockery v. Department of Human Resources 

William Irving Commodore v. Department of Human Resources 

David F- Norman v. Department of Human Resources 

Richmond P, Lambert ID v. Department of Human Resources 

Carvin Ray Burris v. Department of Human Resources 

Mar F. Jones v. Department of Human Resources 

Sharron S. Chappell v. Department of Human Resources 

Denis J. Quinn v. Department of Human Resources 

Franklin DeAngelo Staten v. Department of Human Resources 

Steve E. Young v. Department of Human Resources 

James Alan Letchworth v. Department of Human Resources 

Nathaniel D Carter v. Department of Human Resources 

Dennis W. Clowers v. Department of Human Resources 

Tracy A. Merrill v. Department of Human Resources 

Randy Shaw v. Department of Human Resources 

Daniel J. McDowell v. Department of Human Resources 

Enrico Phineas Acher v. Department of Human Resources 

Roger Waldren v Department of Human Resources 

Randy Allen Vore v. Department of Human Resources 

Ramona G. Garrett v. Department of Human Resources 

Alan M. Greenberg v. Department of Human Resources 

Wal'er McNeil v. Department of Human Resources 

David Hobson v. Department of Human Resources 

Jerry Whitley v. Mecklenburg County Child Support Enforcement 

Linda Wade-Hargrove v. Department of Human Resources 

Regina C. Sullivan v. Department of Human Resources 

Teri Lynne Lanier v Department of Human Resources 

Katrina T. Johnson v. Department of Human Resources 

Clarisa Carter Watson v Department of Human Resources 

Paulette Duggins Rodgers v. Department of Human Resources 

INSURANCE 

Joseph J. Peacock v Department of Insurance 

JUSTICE 

Barbara Carter Irons v. DHR. Division of Facility Services 

Paul Harvey Taylor v. Department of Justice. Company Police Program 

Christopher Michael Lynn v. Company Police Program 

Imran Ramnarine v. Department of Justice. Company Police Program 

Alarm Systems Licensing Board 

Kim Brian Phelps v. Alarm Systems Licensing Board 
Daniel Joseph Dunne, III v Alarm Systems Licensing Board 

Education and Training Standards Division 

Charles Thomas Ohnmacht. Jr.v, Criml. Justice Ed/Training Stds, Comm. 

Jon Randolph O'Dell v. Criml. Justice Ed. /Training Stds. Comm. 

James Haywood Mathews, Jr. v. Criml. Justice Ed./Training Stds. Comm. 

Christopher Lee v Criminal Justice Ed. & Training Standards Comm 

Steven Wayne Olsen v. Criminal Justice Ed. & Training Standards Comm 

Garfield Duncan Whitaker v Criminal Justice Ed. & Training Stds. Comm 

Joseph Lonnie Wesson v. Criminal Justice Ed. & Training Standards Comm 

Frank Arlander Hearne v. Criml. Justice Ed. & Training Stds. Comm. 

Audrey McDonald Rodgers v. Sheriffs' Ed, & Training Stds. Comm. 

Gerald S, Wingate v. Sheriffs' Ed. & Training Stds. Comm. 

William Malcolm Mourino v. Sheriffs' Ed. & Training Stds. Comm. 

Derrick W. Bowens v. Sheriffs' Education & Training Standards Comm. 

Joseph Ray Davis v. Sheriffs' Ed, & Training Stds. Comm. 

William Wayne McDowell v Sheriffs' Education & Training Stds Comm. 

Private Protective Services Board 
Private Protective Services Board v. Phillip L. Hanson 
Ronald Anthony Bobeck v Private Protective Services Board 
Joseph D. White v. Private Protective Services Board 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


97CSE0418 


Becton 


08/12/97 




97 CSE 0435*'* 


Phipps 


08/11/97 




97 CSE 0448 


Gray 


07/28/97 




97 CSE 0454 


Morrison 


08/04/97 




97 CSE 0490 


Mann 


06/17/97 




97 CSE 0501*'- 


Phipps 


07/25/97 




97 CSE 0550 


Smith 


09/05/97 




97 CSE 0564 


Gray 


09/15/97 




97 CSE 0600 


Morrison 


07/18/97 




97 CSE 0615 


Reilly 


08/21/97 




97 CSE 0642 


Mann 


10/03/97 




97 CSE 0671 


Mann 


10/03/97 




97 CSE 0672 


Gray 


07/28/97 




97 CSE 0712 


Morrison 


10/06/97 




97 CSE 0751 


Becton 


09/11/97 




97 CSE 0777 


Phipps 


08/28/97 




97 CSE 0789 


Morrison 


12/04/97 




97 CSE 0794 


Reilly 


09/24/97 




97 CSE 0822 


Morrison 


11/06/97 




97 CSE 0876 


Mann 


12/04/97 




97 CSE 0919 


Reilly 


12/08/97 




97 CSE 0931 


Smith 


09/25/97 




97 CSE 0944 


Becton 


09/11/97 




97 CSE 0947 


Phipps 


11/18/97 




97 CSE 0981 


Gray 


12/11/97 




97 CSE 0984 


Morrison 


09/10/97 




97 CSE 0990 


Reilly 


11/05/97 




97 CSE 1042 


Chess 


10/13/97 




97 CSE 1071 


Mann 


10/07/97 




97 CSE 1108 


Morrison 


12/04/97 




97 CSE 1311 


Smith 


12/08/97 




97 CSE 1324 


Becton 


09/11/97 




97 CSE 1747*" 


Phipps 


07/24/97 




97 CSE 2037 


Reilly 


08/21/97 




97 DCS 0365 


Becton 


07/11/97 




97 DCS 0482 


Becton 


07/18/97 




97 DCS 0738 


Smith 


09/05/97 




97 DCS 0856 


Becton 


09/24/97 




97 DCS 0909 


Gray 


10/02/97 




97 DCS 1238 


Smith 


12/08/97 




96 INS 0433 


Becton 


07/25/97 


12:04 NCR 327 


97 DOJ 0669 


Phipps 


08/27/97 


12:06 NCR 501 


97DOJ0916 


Reilly 


10/03/97 




97 DOJ 1120 


Chess 


10/22/97 




97 DOJ 2071 


Becton 


06/11/97 




96 DOJ 1785 


Gray 


08/08/97 




97 DOJ 0868 


Phipps 


09/12/97 




96 DOJ 0353 


Phipps 


06/13/97 




96 DOJ 1466 


Phipps 


09/16/97 




96 DOJ 1957 


Reilly 


07/31/97 




97 DOJ 0076 


Morrison 


06/19/97 




97 DOJ 0077 


Phipps 


08/21/97 




97 DOJ 0121 


Phipps 


11/04/97 




97 DOJ 0136 


Reilly 


08/26/97 




97 DOJ 0137 


Reilly 


06/10/97 




97 DOJ 0308 


Reilly 


07/31/97 




97 DOJ 0428 


Gray 


10/09/97 




97 DOJ 0430 


Phipps 


09/16/97 




97 DOJ 0661 


Smith 


08/29/97 




97 DOJ 0747 


Gray 


10/02/97 




97 DOJ 0817 


Morrison 


08/22/97 




96 DOJ 0795 


Smith 


06/05/97 




97 DOJ 0476 


Morrison 


06/20/97 




97 DOJ 0724 


Gray 


10/06/97 





12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1197 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Harry A House v. Private Proieciive Services Board 
Earl Thomas Wilson v. Private Proteciive Services Board 
Patli Jones v. Private Protective Services Board 
John Stokes. Jr. v Private Proteciive Services Board 

PUBLIC INSTRUCTION 

Nicholas Eirschele. by his parents. Charles & Kathy Eirschele v. Craven 

County Board ol Education 
Jay and Elisabeth Miller v. Henderson County Public Schools 
Karen L. Holgersen v Department of Public Instruction 
Meridiih Kirkpatrick. by her parent. Susan Kirkpatrick and Meridith 

Kirkpatnck. Individually v Lenoir County Board of Education 
Brian Allen Hoffman v Department of Public Instruction 
Alexander & Linda Brody & their son. James Brody v Dare County 

Public Schools 
Jay and Elisabeth Miller v Henderson County Public Schools 
Brenda Joyce Brooks Lovely v. State Board of Education 
John G Schaenman v State Board of Education 
Norman D- Crotts v State Board of Education 

Paul W Bonham v. State Board of Education. Dept- of Public Instruction 
Fred W, Crauford n v Charlotte/Mecklenburg Board of Education 
Walter R. Bennett v State Board of Education 
Julius O Webb v. Hertford County Board of Education 
H. Margaret Willeils v. Department of Public Instruction 
Karen Clark Ceccaio v. Department of Public Instruction 
Carl Smith Herman v. State Board of Education 

STATE PERSONNEL 

Brunswick Community College 

Dr Donald W Skinner v Brunswick Community College 

Correction 

Rodney Jones, Paula Hawkins, James McKoy v. Dept. of Correction 

Rodney Jones, Paula Hawkins, James McKoy v, Dept, of Correction 

Rodney Jones, Paula Hawkins, James McKoy v. Dept. of Correction 

Larry Wayne Pruilt. Jr v Department of Correction 

William Hershel Bradley v Franklin Freeman. Supt. Mark Hughes. 

Grant Spicer. Assi. Supl. Wade Hatley. ei al. Department of Correction 
Dennis Harrell v. Department of Correction 
Ray Evans Joyner v. Correction, Div. of Adult Probation/Parole 
Morton Floyd v. New Hanover Department of Correction 
Fannie P. Greene v Adult Probation. State of NC 
William G Jordan v. Department of Correction 

William A. Rich v. Dennis Rowland (Asst Supt ) Wake Corr Ctr DOC 
Tone M. Osborne v. Department of Correction 
Dennis M. Butcher v. Department of Correction 
Lonnie F. McCaskill. HI v Department of Correction 
William E McCaskill v Department of Correction 
Andrew Pinto v Department of Correction 

Ronald M. Johnson v. Emp. Rel. Comm.. DOC (Morrison Youth Inst.) 
Reginald W Lewis v. Piedmont Corr. Institute, Mr. T. Pinion, Cpt, 

K. Fry, Sgt, Dancy. SCT. B Crawford 

Crime Control and Public Safety 

Timothy M Lassiier v. Crime Control & Public Safety, St. Hwy Patrol 

Carroll E Ward v. State Highway Patrol 

Employment Security Commission 

Bro.xie J Nelson v Emplovment Security Commission 

Mary H, Ranson v Employment Security Commission 

Environment, Health, and \atural Resources 

Dowell Gray v. Department of Environment and Natural Resources 
and 
Onslow County Department of Health 
James Fred Swain v. Environment. Health, and Natural Resources 
James S. Kantor v. Environment. Health, and Natural Resources 

Human Resources 

Betty J, Souther v. New River .Area MH/DD/SA Program 

Willie D. Parks v. Cherry Hospital. Depariment of Human Resources 

Robert Tilson Morley v Department of Human Resources 

Glen Sutton v. Cumberland County Department of Social Services 



97 DOJ 0727 
97 DOJ 0996 
97 DOJ 1195 
97 DOJ 1196 



96 EDC 0655 

96 EDC 0766* 
96 EDC 0808 
96 EDC 0979 

96 EDC 1013 
96 EDC 1095 



Phipps 
Gray 
Reilly 
Reilly 



Mann 

Phipps 

Smith 

Overby 

Gray 
Creech 



97OSP0310 


Phipps 


96 0SP 1051*'" 


Phipps 


96 0SP 1119*" 


Phipps 


96 0SP 1120*" 


Phipps 


96 0SP 1133 


Gray 


96 0SP 1604 


Phipps 


96 OSP 2039 


Chess 


97OSP0100 


Becton 


97 OSP 0152 


Gray 


97 OSP 0261 


Gray 


97 OSP 0469 


Morrison 


97 OSP 0542 


Gray 


97 OSP 0601 


Smith 


97 OSP 0745 


Reilly 


97 OSP 0761 


Gray 


97 OSP 0770 


Becton 


97 OSP 0873 


Becton 


97 OSP 0940 


Gray 


97 OSP 1276 


Smith 



09/11/97 
10/06/97 
11/03/97 
11/03/97 



09/02/97 

12/11/97 
05/27/97 
06/02/97 

10/24/97 
08/25/97 



96 EDC 1708*^ 


Phipps 


12/11/97 


97 EDC 0089 


Morrison 


08/01/97 


97 EDC 0095 


Morrison 


10/07/97 


97 EDC 01 17 


Reilly 


09/23/97 


97 EDC 0343 


Smith 


10/28/97 


97 EDC 0345 


Smith 


10/21/97 


97 EDC 0657 


Smith 


09/29/97 


97 EDC 0736 


Gray 


09/09/97 


97 EDC 0978 


Phipps 


10/29/97 


97 EDC 0989 


Smith 


09/16/97 


97 EDC 1050 


Becton 


10/27/97 



06/12/97 



08/20/97 
08/20/97 
08/20/97 
08/11/97 
06/19/97 

06/18/97 
09/18/97 
06/13/97 
11/20/97 
10/31/97 
09/02/97 
10/27/97 
12/10/97 
10/02/97 
09/26/97 
10/31/97 
10/02/97 
12/02/97 



12:13 NCR 1201 

12:07 NCR 581 
12:13 NCR 1201 



12:11 NCR 987 



97 OSP 0423 


Phipps 


10/29/97 






97 OSP 0750 


Mann 


09/16/97 






96 OSP 0378 


Becton 


07/10/97 






97 OSP 0387 


Mann 


07/24/97 






97 OSP 0374*" 


Gray 


12/01/97 


12:13 NCR 


1222 


96 OSP 0440 


Gray 


10/02/97 


12:09 NCR 


851 


96 OSP 0633 


Smith 


09/30/97 


12:09 NCR 


854 


94 OSP 0327 


Becton 


10/20/97 






96 OSP 0617 


Phipps 


09/10/97 






96 OSP 0969 


Gray 


08/21/97 






96 OSP 1296 


Grav 


07/17/97 







1198 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



AGENCY 

Brenda C. Burgess v. Dept of Human Resources (Broughton Hospital) 

Felicia Ann Baker v. Lenoir County DSS. Jack B. Jones 

Sliarron S. Moten v. Lenoir County DSS, Jack B Jones 

Pamela Massey v. Department of Human Resources 

Clifton Dean Hill v. Department of Human Resources 

Bennie Allen Suitle v. Department of Human Resources 

Calvin E. Kaiser v. Southeastern Mental Health Center 

Sandra Riley v Onslow County Department of Social Services 

Vicky Angel Morgan v. Buncombe County Department of Social Services 

Rick A. Sanders v. Department of Health and Human Services 

Troy Gaines v. Durham County Mental Health Department 

Edward Percell Eason v. Department of Human Resources 

Dale Dees v. Trend Community Mental Health Services 

Lisha Dawn Byrd v Human Resources (Western Carolina Center) 

Richard G. Steeves v. Scotland County Board of Health 

Antonio A. Archibeque v Barbara D, Whitley, Dir, Stanly County DSS 

DHR, Deaf & Hard of Hearing CNCSD, Evonne Broadnax v. DHR. 

Deaf & Hard of Hearing CNCSD 
Richard G Steeves v, Scotland County Board of Health & Scotland County 
Julia R. Baker v. Union County Department of Social Services 

Public Instruction 

Frances Phillips Meloit v. Department of Public Instruction 
Dowell Gray v. Department of Environment and Natural Resources 
and 
Onslow County Department of Health 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


96 OSP 1485 


Phipps 


10/13/97 




96 0SP 1664 


Becton 


12/05/97 




96 OSP 1665 


Becton 


12/05/97 


12:13 NCR 1215 


96 OSP 1927 


Becton 


08/28/97 


12:06 NCR 497 


97 OSP 0007 


Phipps 


06/20/97 


12:02 NCR 107 


97 OSP 0069 


Reilly 


09/30/97 




97 OSP 0073 


Gray 


08/08/97 




97 OSP 02 17 


Reilly 


10/14/97 




97 OSP 0283 


Becton 


10/02/97 




97 OSP 0307 


Reilly 


10/16/97 




97 OSP 0347 


Mann 


08/05/97 




97 OSP 0363 


Gray 


08/15/97 




97 OSP 0402 


Mann 


11/24/97 


12:12 NCR 1087 


97 OSP 0491 


Morrison 


08/28/97 




97 OSP 0622*^ 


Phipps 


10/21/97 




97 OSP 0663 


Smith 


09/02/97 




97 OSP 0756 


Becton 


09/03/97 




97 OSP 0760*^ 


Phipps 


10/21/97 




97 OSP 0783 


Gray 


10/13/97 




95 OSP 0907 


Trawick 


06/09/97 




97 OSP 0374*=' 


Gray 


12/01/97 


12:13 NCR 1222 



Transportation 

Tommie R. Jones, Samuel W. Winstead, Timothy C. Sturges, Michael J. 

Boone, and Ronnie Batchelor v. Dept. of Transportation, Div. of Motor 

Vehicles, Enforcement Section 
Tommie R. Jones, Samuel W, Winstead, Timothy C. Sturges, Michael J. 

Boone, and Ronnie Batchelor v. Dept, of Transportation, Div. of Motor 

Vehicles, Enforcement Section 
Tommie R. Jones, Samuel W. Winstead, Timothy C. Sturges, Michael J. 

Boone, and Ronnie Batchelor v. Dept. of Transportation, Div. of Motor 

Vehicles, Enforcement Section 
Georgia B. Warren v. Dept. of Transportation, Div of Motor Vehicles, 

Enforcement Section 
Tommie R. Jones, Samuel W. Winstead, Timothy C. Sturges, Michael J. 

Boone, and Ronnie Batchelor v. Dept. of Transportation, Div. of Motor 

Vehicles, Enforcement Section 
Tommie R. Jones, Samuel W. Winstead. Timothy C. Sturges, Michael J. 

Boone, and Ronnie Batchelor v. Dept. of Transportation, Div. of Motor 

Vehicles, Enforcement Section 
Wendell L. Webb v. Department of Transportation, Ferry Division 
Wendell L. Webb v. Department of Transportation, Ferry Division 
Frank A. Tice, III v. Department of Transportation 
Roy J. Abbott v. Department of Transportation 

University of North Carolina 

Boyd S. Taylor v. NC Central University 

Diane Riggsbee-Raynor v. UNC at Chapel Hill 

Helen Mclntyre v. UNC-TV University of North Carolina 

Elaine P. Browne v. Winston-Salem State University 

Carol Glosson v. University of NC Hospitals at Chapel Hill 

Theresa Rogers v. University of NC Hospitals at Chapel Hill 

Ann 0. Meares v. NC State University 

Darrell J. Hampton v NC Central University 

Clinton A. Browne v. NC A&T State University 

Kenneth L. Jarman v. East Carolina University 

William A. Covington v. NC A & T State University 

Beth W. Vinson v. Western Carolina University 

Viola Simmons v. UNC-Wilmington 

Helen Mclntyre v. UNC-TV University of North Carolina 

Helen Mclntyre v UNC-TV University of North Carolina 

E. Julius Carter v UNC-Greensboro 



SECRETARY OF ST.4TE 

Greenway Capital Corp. & Stacey Lee Davis v. Securities Div. Sec'y/Stale 94 SOS 0097 
Teresa M. Colirain v Secretary of State 



STATE TREASURER 

Shelby H. Underwood, et.al. 



. Trustees Teachers/St, Emp Ret. Sys. 



96 OSP 0781*=' 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 0782*=' 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 0783*=' 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 0784*=' 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 0785*=' 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 0786*=* 


Phipps 


11/13/97 


12:11 NCR 


979 


96 OSP 1710*=-' 


Phipps 


10/31/97 






97 OSP 0198*=' 


Phipps 


10/31/97 






97 OSP 0380 


Mann 


09/05/97 






97 OSP 0697 


Morrison 


12/05/97 






94 OSP 0363 


Chess 


09/12/97 






96 OSP 0326 


Chess 


06/04/97 


12:01 NCR 


39 


96 OSP 0822 


Gray 


09/26/97 






96 OSP 1007 


Reilly 


09/24/97 






96 OSP 1015 


Becton 


10/08/97 






96 OSP 1065 


Morrison 


10/23/97 






96 OSP 1870 


Chess 


09/22/97 






97 OSP 0155 


Mann 


08/11/97 






97 OSP 0199 


Phipps 


09/18/97 






97 OSP 0249 


Gray 


09/26/97 






97 OSP 0686 


Becton 


08/29/97 






97 OSP 0762 


Phipps 


10/10/97 






97 OSP 0859 


Gray 


11/18/97 






97 OSP 0991 


Gray 


09/26/97 






97 OSP 1148 


Gray 


10/16/97 






97 OSP 1202 


Phipps 


11/05/97 






94 SOS 0097 


Gray 


10/28/97 






97 SOS 0499 


Reilly 


10/22/97 


12:10 NCR 


914 


96 DST 0390 


Reilly 


08/05/97 







12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1199 



CONTESTED CASE DECISIONS 



AGENCY 



Richard Albert Jose v Stale Treasiirer Retirement Systems Div. 



TRANSPORTATION 

Audrey W Harris v. Transportation, Manson/Wheat Contr , & Wake Elec. 97 DOT 0566 Gray 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


97DST0281 


Reilly 


10/02/97 


97 DOT 0566 


Gray 


07/28/96 



PUBLISHED DECISION 
REGISTER CITATION 



UNIVERSITY OF NORTH CAROLINA 

Clinton S. Rogers v. UNC-Chapel Hill 



97 UNC 1062 Beclon 



10/31/97 



1200 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



> 



STATE OF NORTH CAROLINA 
COUNTY OF HENDERSON 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

96 EDC 0766, 1708 



JAY AND ELISABETH MILLER, 
Petitioners, 



HENDERSON COUNTY PUBLIC SCHOOLS, 
Respondent. 



FINAL DECISION 



This matter was heard before the Honorable Meg Scott Phipps, Administrative Law Judge, on March 17, 18, 19, 20, 
21, 24, 25, 26. 27 and April 3, 4, 5, 7, 8, 9, 10, 14, 15, 16 in Hendersonville, North Carolina. 



For Petitioners: 



I 



For Respondent: 



APPEARANCES 

Paul Erickson 

Law Firm of Paul L. Erickson, P. A. 

Building One Suite Three 

1998 Hendersonville Road 

Asheville, NC 28803 

Shelli J. Lewis 

Attorney at Law 

1101 California Avenue 

Suite 100 

Corona, CA 91719 

Andrea C. Knight 

Attorney at Law 

Governor's Advocacy Council for Persons 

With Disabilities 

Broughton Hospital 

P.O. Bo.x 87 

Morganton, NC 28655 

Ann L. Majestic 

Ruth T. Dowling 

THARRINGTON SMITH 

209 Fayetteville Street Mall 

P.O. Box 1151 

Raleigh, North Carolina 27602 

WITNESSES 



For Petitioners: 



> 



Elisabeth Miller 
Dr. Jan Blacher 
Colleen Wyatt 
Caroline Dilworth 
Dr. Jacqueline Wyrm 
Kate Scharstein 
Dr. Thomas Boyle 
Karen Perella 



, 12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



1201 



CONTESTED CASE DECISIONS 



Jay Miller 

For Respondent: Judy Cook 

Laurie McDanel 
Candy Priest 
Faye Arledge 
Dr. Victoria Shea 
Dr. B.J. Freeman 
Sloan Burgess 
Dr. Lee Marcus 



ISSUE 



\. Whether respondent offered Catherine Miller a free appropriate education during the 1996-97 school year which was 

reasonably calculated to allow her to make educational progress. 

REFERENCE ABBREVIATIONS 

T = Transcript of Hearing 

I-IV = Volumes of Transcript 

p(p) = Page(s) 

Resp = Respondent 

Pet = Petitioners 

Exh = Exhibit 

FINDINGS OF FACT 

1. Petitioners Jay and Elisabeth Miller are the parents of Catherine Miller a seven-year-old with autism who is entitled to 
services as a special needs student in respondent's schools. Respondent, Craven County Board of Education, is a local 
educational receiving monies pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1400 et seq.. 

2. Upon a motion by respondent, this court, by decision of Chief Judge Julian Mann, granted summary judgment for 
respondent on all of Petitioners' procedural and substantive claims prior to the development of the 1996-97 lEP and denied 
Petitioners' claim for additional reimbursement for the independent evaluation. The only claim remaining for adjudication in 
this contested case is Petitioners' claim regarding the 1996-97 lEP. Petitioners had also filed a claim in July 1996 for full 
reimbursement of an independent evaluation, above and beyond the $1200.00 that had been paid by respondent. 

3. Petitioners filed a petition for a contested case hearing in the Office of Administrative Hearings on November 1 , 1996, 
alleging that the educational program offered by respondent to Catherine for the 1996-97 school year was inappropriate. 
Petitioners sought reimbursement by the school system of their chosen educational program, the Lovaas method, from 
November 1993 to the present. 

4. Catherine was diagnosed with autism at approximately age two. During the 1992-93 school year, Catherine attended a 
Montessori preschool in New Hampshire three days a week for three hours a day. She was accompanied to the class by an 
assistant who was not trained in autism. (T.IVp.86). Catherine did not display any aggressive behaviors in class. (T.IVp.99). 

5. Mr. William White, a psychologist with experience in autism who was hired by the Millers, consulted monthly with 
the staff at the Montessori school to discuss Catherine's autism and assist in her educational programming. (T.IIp. 16). 

6. The Millers moved to Hendersonville, North Carolina in June 1993 in order to take advantage of services from the 
Treatment and Education of Autistic and Related Communication Handicapped Children ( TEACCH ) program. (T.III p. 13). 
The Millers learned of the TEACCH program by attending conferences on autism and researching available programs. 
(T.IIp.20-21). They moved based on their understanding that TEACCH is a nationally known program for autistic students and 
their families. (T.VIp.68). 

7. The TEACCH program, begun with support of the state legislature in 1972, is a comprehensive system that provides 
treatment, education and support for autistic children, adults and their families. TEACCH provides evaluations and consultation 



1202 NORTH CAROLINA REGISTER January 2, 1998 12.13 



CONTESTED CASE DECISIONS 



to school systems throughout North Carolina, the U.S. and the World. (T.XIX, pp. 19-40). 

8. The TEACCH philosophy focuses on using meaningful routines and visual clarity to teach autistic individuals to 
function independently. Through the use of structure and clarity, the autistic person is taught to understand concepts, work 
skills and expectations. The skills that are learned at the pre-school level are built upon as the individual with autism grows 
older, leading to greater independence and adaptability in the classroom, home setting, group home, vocational or supported 
employment settings. The TEACCH approach focuses on the student's strengths and on what children with autism personally 
find motivating or interesting and utilizes these in a creative manner to teach new skills. (Resp.Exh. 73). 

9. In July 1993 Catherine was evaluated by Sloan Burgess at the TEACCH center in Asheville, North Carolina. (Resp. 
Exh. 46). Sloan Burgess testified to her extensive experience working with individuals with autism. She has been employed by 
TEACCH since 1991 as a special education specialist. In that role she conducts diagnostic evaluations, provides consultation to 
school systems, provides parent and professional training and organizes and conducts support groups for families. (T. XVIII, p. 
6). 

10. Ms. Burgess testified that during the July 1993 testing Catherine showed areas of substantial deficit in social 
relatedness. (T. XVIII, p. 14). She displayed no functional language except for the word "no" but she babbled throughout the 
evaluation. (T. XVIII, p. 13). 

11. In August 1993, the Millers along with Sloan Burgess met with Henderson County school personnel to develop an lEP 
for Catherine. (Resp. Exh. 2). The Millers, Ms. Burgess and school personnel agreed that Catherine should be served in the 
TEACCH preschool classroom which was just being developed at the Helping Hand Center. Catherine's lEP called for her to 
be in a full day program specially designed for students with autism. (Resp. Exh. 2). This was the first time Catherine had 
been placed in a class specially designed for autistic students. The lEP also called for two half-hour sessions of speech therapy 
weekly. Resp. Exh. 2). 

12. William White also advocated placement of Catherine in the Helping Hand TEACCH class. In a consultation report 
provided to school personnel in August 1993, Mr. White stated "it is very important to note that Catherine needs plenty of time 
to learn about her educational environment. At first staff should follow her lead and capitalize on the few teachable moments 
she gives you; then increase your expectation level as she becomes more comfortable." (Resp. Exh. 43). The report also noted 
that Mr. White "felt quite strongly" that "Catherine can develop verbal communication." (T.IV, p.l03)(Resp.Exh.43). He 
advocated the use of picture schedule boards, choice boards, verbal modeling and the use of sign language. (T.IV, p. 102). All 
of these suggestions were incorporated into Catherine's lEP. (Resp. Exh. 2). 

13. Faye Arlege, the teacher in the Helping Hand classroom, and Sloan Burgess, who provided consultation to the 
classroom, testified that Catherine made good progress during the short time period she was enrolled in the class. (T.XI, p. 17). 
They indicated that Catherine learned how to work on a specific task by sitting at a table, attending to the task and manipulating 
the materials. (T.XI, p. 19). 

14. Although Catherine's lEP called for a full-day program, Mrs. Miller only brought Catherine for half day for most of 
the time she was enrolled. (T.XI, p. 15). 

15. Ms. Arledge testified that a typical class day involved group time and individualized instruction for each student. 
(T.XI, p. 13-14). She had a program of reverse mainstreaming (T.XI, p. 69) and two of her students also were mainstreamed for 
short periods of time each day. Ms. Arledge and Ms. Burgess testified that in their opinion mainstreaming was not appropriate 
for Catherine at the beginning of the school year but it would have been an option later in the year if she gained enough skills to 
make it appropriate. (T.XI, p. 21-22). 

16. Faye Arlege and Sloan Burgess testified that Catherine did not have significant behavioral problems while in the 
Helping Hand classroom. (T.XI, p. 22). The speech-language lEP drafted for Catherine from 1/94-1/95 states in present level 
of performance that Catherine "does not display aggressive behaviors. Responds well to structure and routine." (Resp. Exh. 3). 

17. Mrs. Miller testified that she learned of the Lovaas program in October 1993 by reading a book by Catherine Maurice 
in which Ms. Maurice recounts the "recovery" of her two children from autism. After reading the book, in mid-October 1993, 
Mrs. Miller contacted UCLA and arranged for the Ann Maxwell from the Chicago Program to conduct a Lovaas training 
workshop. (T.IV, p. 128) (T.IV, p. 128). The workshop was scheduled for December 1993. 



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18. The Lovaas program is described in the program literature as a treatment approach that specializes in helping pre- 
school children who are autistic and/or mildly to inoderately retarded. (R.Exh. 184). The program uses behavioral techniques 
derived from the research of Dr. Ivar Lovaas of the UCLA Psychology Department conducted in the 1970's. (P. Exh.7, p. 81). 
The Lovaas research claimed that 47% of the 19 subjects in his study achieved normal educational and intellectual functioning 
by 7 years of age. (Id.). The program emphasizes discrete-trial teaching, involving the use of repeated verbal prompts to 
elicit specific verbal or behavioral responses. Positive reinforcers such as candy, tickles and verbal praise are used to reward 
correct responses; contingent aversive NO's spoken in a loud voice are used as negative reinforcers. tR-Exhs. 184; 73). Other 
negative consequences are delivered for unacceptable behavior. 

19. Dr. Lovaas has established a for-profit center to provide Lovaas workshops, designed to help families set up 
treatment programs of their own. (R.Exh. 184. p. 4). Through the workshops, parents and staff members (recruited by the 
parents) are trained in the Lovaas method. Staff members are referred to as therapists. They do not require any special 
credentials or previous experience to be qualified to be therapists. The Lovaas Clinic recommends dependable college students 
as good candidates. In addition to training the staff, the Lovaas program provides a UCLA consultant who visits the home site 
quarterly to monitor and advise regarding the program. The consultants may be graduate students or recent college graduates 
who have worked in the Clinic. (R.Exh. 184). 

20. On November 23, 1993, the Millers removed Catherine from the Helping Hand classroom. In a letter of that date to 
Candy Priest, supervisor for Exceptional Children's program for the Henderson County Schools, Mr. Miller indicated his two 
reasons for removing Catherine were the published results of studies that the behavioral (Lovaas) approach is highly successful 
and the Millers' belief that the Montessori classroom was the best placement for Catherine. He did not express any discontent 
with the TEACCH program. (Resp.Exh. 72). 

21. Dr. Lee Marcus, the Clinical Director of the Chapel Hill TEACCH Center, testified that three months of education in 
the TEACCH classroom was not a sufficient amount of time to judge the success of Catherine's program in light of her age and 
her lack of prior enrollment in a structured classroom for students with autism. (T.XIX, p. 191-192). 

22. Although Catherine was no longer receiving special education services from the respondent's schools, respondent 
agreed to continue to provide Catherine speech language services even though not required to according to the Department of 
Public Instruction. (T.XI, p. 132). In January 1994, an lEP meeting was held to develop a new speech lEP for Catherine and 
her speech service time was increased to two hours a week. (T.XI, p. 133). 

23. On December 21, 1993, the Millers began implementing the Lovaas program with Catherine for 20 hours a week. 
(T.IV, p. 153). Mrs. Miller testified that the she knew the Lovaas program was working for Catherine because she went from 
being nonverbal to using words within the first months of the program. She testified that Catherine was unable "to imitate a 
single thing" or to repeat any words "on command" prior to starting Lovaas. (T.VI, p. 31). However, the speech records of 
Karen Perella show that Catherine was able to both imitate motions and to say certain words in October and November 1993. 
(Resp. Exh. 174). Ms. Perella testified that Catherine's language was emerging at that time prior to her beginning the Lovaas 
program. (T.XV, p. 217). Sloan Burgess testified that Catherine's lack of spontaneous language was not an area of concern for 
her since Catherine had prerequisite skills which suggested her language and communication would develop over time. 
(T. XVIII, p. 22-23). Dr. Marcus also testified that Catherine showed early indicators that she was likely to develop speech, 
given her non-verbal IQ score, echolalia and good early services. (T.XIX, p. 1 15-118). 

24. In August 1994, the Millers began working with the UCLA Lovaas program. (T.IV, p. 164). Catherine's therapy was 
increased to 40 hours a week and her amount of time in school decreased. Mr. Miller met with Candy Priest and requested a 
copy of Catherine's student records. At that time, Ms. Priest informed Mr. Miller that the school system could provide special 
education services to Catherine at her private school. (T.XI, p. 144). Mr. Miller declined the offer indicating that he and his 
wife did not want the private school to know that Catherine had autism. (T.XI, p. 144). 

25. In December 1994, Mr. Miller contacted Candy Priest to request that the school system begin paying for the Lovaas 
program. (T.XI, p. 144-145). Ms. Priest indicated that it would be necessary for the Millers and school persormel to meet to 
discuss Catherine's educational needs and to determine an appropriate educational placement for her. (T.XI, p. 144-145). In 
January and February 1995 the Millers and school personnel held a series of meetings to develop an lEP for Catherine. (T.XI, 
p. 145-146). 

26. While in the process of developing the lEP, Judy Cook, the Director of Exceptional Children's Programs, and Sharon 
Burlingame, a special education teacher, visited the Millers' home to observe the use of Lovaas therapy with Catherine. (T.VI, 



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p. 145) (Resp.Exh.171). Judy Cook testified that Catherine appeared ver>' tired during the therapy and hit herself in the face 
several times out of apparent frustration and weariness. (T.IX. p. 80-82). 

27. On February 15, 1995, a final lEP meeting was held. At that time, the school-based committee considered four 
possible programs for Catherine: the Helping Hand Classroom, Sharon Burlmgame's classroom, the TEACCH classroom at 
Bruce Drysdale school and the Lovaas program. (T.VI, p. 196-97). The committee recommended that Catherine be placed in a 
full-day program for autistic students at Bruce Drysdale school with some mainstreaming in a regular kindergarten classroom. 
(T. VI, p. 197). The Millers continued to request that the school system pay for the Lovaas program. Judy Cook indicated in 
the meeting that it was her belief that the Lovaas program was too restrictive for Catherine and that the program offered by the 
school system was more appropriate. (T.VI, p. 203) (T.VIII, p. 84). The Millers pointed to the Lovaas study and indicated that 
unless the school system could provide comparable data showing 47% of the students becoming indistinguishable from regular 
education students then they felt the Lovaas program was the best option. (Pet. Exh. 56). 

28. The next day, Judy Cook sent the Millers a letter again detailing the rationale behind the school-based committee's 
decision. (Resp.Exh.78). Mrs. Cook enclosed a Parent's Rights Handbook and explained in the letter that the Millers could 
pursue a due process hearing in light of their disagreement with the school system's offer of services. (Resp. Exh. 78) (T.VI, 
p. 203-204). 

29. Although the Millers initially indicated in the spring of 1995 that they would like to pursue mediation with the school 
system over the placement decision, in May 1995 the Millers wrote to Judy Cook and stated that they had obtained 
representation by the Governor's Advocacy Council and that they were not available for mediation. (Resp. Exh. 84). The 
Millers never pursued mediation after that point. 

30. At the end of June 1995, the Millers requested that the school system pay for an independent educational evaluation of 
Catherine. (T.IX, p. 8). Because the most recent evaluation of Catherine was at that point over a year and a half old, Judy 
Cook requested that the school system be allowed to test Catherine first and that the Millers could obtain an independent 
evaluation if they disagreed with the results of the school system's evaluation. (T.IX, p. 8-9). 

31. An evaluation of Catherine was conducted by school personnel in August and September 1995. (T.VIII, p. 219-220). 
In October 1995 the Millers and school personnel met to review the results of the evaluation. (T.IX, p. 9). Mrs. Miller 
requested that one portion of the testing be readministered, and it was redone although the results did not markedly change. 
(T.IX, p. 10). 

32. Because Catherine's February 1995 lEP was to expire in January 1996, school persormel invited the Millers to meet in 
November 1995 to begin developing an lEP for the 1996-97 year. (T.IX, p. 11). A school-based committee meeting was held 
in November and at that time school personnel presented to the Millers a draft lEP to begin the discussions. (T.IX, p. 10). The 
Millers stated that Catherine had already mastered many of the proposed goals and objectives. (T.IX, p. 12). Some time after 
the meeting, the Millers provided school personnel with a copy of the draft lEP that had been reviewed by Michael Guiou, their 
UCLA Lovaas consultant, and on which Mr. Guiou indicated many areas that Catherine had "mastered." (T.IX, p. 11) 
(Resp. Exh. 9). 

33. In December 1995 the Millers renewed their request for an independent educational evaluation stating that the 
evaluation conducted by school persormel was insufficient. (T.IX, p. 12). Judy Cook replied that the Millers could pursue an 
independent evaluation and they would be reimbursed up to $1200 (the school system's maximum amount for independent 
evaluations). (Resp. Exh. 119). 

34. The Millers and school personnel jointly agreed to postpone the development of Catherine's full lEP for the 1996-97 
year until the independent evaluation was completed. (Resp. Exh. 7, 115). Catherine's speech therapy lEP was reviewed in 
January 1996 and services continued to be provided by respondent. (Resp. Exh. 4). 

35. In January 1996, long before the independent evaluation was complete, Mrs. Miller wrote to Michael Guiou and stated 
that Catherine "will be attending a small private school next year with eight or nine children" and that the teacher of the class 
would be working with Catherine over the summer. (Resp. Exh. 189). 

36. In March 1996, Dr. Jan Handleman, an educator and professor in New Jersey, conducted an assessment of Catherine. 
(Resp. Exh. 57). His assessment consisted of a review of Catherine's file and a videotape provided by the Millers, and an 
observation of Catherine working with her Lovaas therapist. (T.V, pp. 41-42). Dr. Handleman conducted no formal testing of 



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Catherine. The evaluation was provided to school personnel in early April 1996. (T.VIII, p. 222). 

37. Dr. Handleman's report provided no information on Catherine's present level of educational performance, a necessary 
element for the development of an lEP. (T.VIII, pp.223-225)(T.IX, pp. 12-13). Because the parents and their Lovaas 
consultant, Mr. Guiou, had both indicated that Catherine had mastered many of the draft goals and objectives on the proposed 
lEP, Judy Cook testified that she was concerned that Dr. Handleman's report was not sufficient to assist in lEP development. 
(T.VIII, p. 224). As a result, Judy Cook, sought the assistance of Dr. Victoria Shea, an expert in autism, to informally assess 
Catherine in order to provide information for lEP development. (T.VIII, p. 225). 

38. The Millers agreed to Dr. Shea's involvement. Dr. Shea reviewed all of the records available on Catherine and 
observed Catherine in her home program and at her private school on May 20, 1996. (T. XVIII, p. 254). Dr. Shea also 
observed in Ms. McDanels" and Ms. Arledge's classrooms. Dr. Shea noted that Catherine was very compliant during the 
observation period but that she became quite confused when she was not given prompts. Catherine did not initiate any contact 
with her peers during the observation period at school. (Resp.Exh.58). 

39. Dr. Shea completed her observation report on May 30, 1996, and recommended that lEP goals be written in several 
specific areas for Catherine. (Resp.Exh.58). In particular. Dr. Shea indicated that Catherine needed work in developing 
independence and functional language. It appeared to Dr. Shea that Catherine had memorized language but was unable to use 
language functionally in many cases. (T. XVIII, pp. 199-200). She also recommended development of self-help skills and 
academics. (T. XVIII, pp. 220)(Resp. Exh.58). 

40. Dr. Shea's report noted and she testified that although Mr. Guiou and the Millers indicated that Catherine had mastered 
numerous skills on the proposed lEP, Catherine was not able to perform those skills when Dr. Shea observed her. 
(Resp. Exh.58). In light of the conflicting information regarding Catherine's ability levels. Dr. Shea advised that Catherine 
should be given more assessments to gauge her present level of functioning. (Resp. Exh.58). 

41. The evidence showed that the skills that Mr. Guiou and Mrs. Miller claimed Catherine had "mastered" in February of 
1996, were not mastered in the school environment as documented by Catherine's teachers at the preschool. 
(Resp.Exh.9);(Resp. E.xh. 194). The teachers, responding to a questionnaire from Mrs. Miller, noted that many of the goals 
which had been proposed for Catherine's lEP in November 1995 were either not attained or emerging by May 1996. (Resp. 
Exh. 194). Dr. Shea testified that Mr. Guiou's report of Catherine's mastery was not reliable. The evidence also showed that 
the skills claimed as "mastered" by Mrs. Miller at the time of the hearing, were not "mastered" in the school environment or 
across all settings but rather only mastered, according to her testimony, in the one-on-one therapy environment. (T.Vp. 76-77). 
Judy Cook testified that these inconsistencies caused the school system to question the evaluation information being provided by 
the Millers and it became important for school personnel to do additional observations or informal assessments of Catherine. 
(T.IX, pp.20). 

42. On May 29, 1996, Laurie McDanel and Janna Forst visited the Millers' home in order to observe Catherine in her 
Lovaas program. (T.V, p.73)(Resp.E.xh.59). The purpose of the visit was to gather more information on Catherine's present 
level of performance for the lEP development. Ms. McDanel testified that when she and Ms. Forst entered Catherine's therapy 
room, Catherine did not look up or acknowledge their presence. vT.X, p. 169). She noted that the therapy appeared to elicit 
information from Catherine's rote memory, rather than eliciting spontaneous communication. (T.X, p. 185). As a professional 
educator, Ms. McDanel believed the therapy to be too intense in light of the limited amount that Catherine was able to do 
during the time period. (T.X, p. 185). 

43. In order to follow up on the visit, Ms. McDanel met again with Mrs. Miller prior to the lEP meeting to again discuss 
Catherine's present level of performance and her needs. (T.X, p. 186). This information was used in developing the lEP. 
(T.V, pp. 73-74). 

44. An lEP meeting was scheduled for June 5, 1996, and following Dr. Shea's recommendation, Judy Cook requested that 
a teacher administer the Brigance test with Catherine prior to the meeting so that the lEP committee would have more 
information on Catherine's current level of academic functioning. (T.IX, pp. 20-22). The Millers would not agree to the 
administration of the Brigance by school persormel and instead stated that they would have it done privately and requested that 
the lEP meeting be rescheduled. (T.V, pp. 43-45). 

45. In late July 1996, the Millers took Catherine to be evaluated by Dr. Thomas Boyle, a private psychologist in New 
Jersey who had worked with Dr. Lovaas. (T.V, p. 48). Dr. Boyle conducted intelligence and achievement testing with 
Catherine. (Resp. E.xh. 60). Dr. Boyle admitted in his report and in his testimony that he deviated from standard 



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administration of the tests in several areas in order to try to elicit responses from Catherine. (Resp.Exh. 60). He also 
acknowledged that these deviations from the norms could have resulted in inflating Catherine's scores on the testing. (T.XV, 
pp. 72-73). At the parents' request Dr. Boyle did not report Catherine's IQ score in his evaluation report. (T.XV, pp.51). Her 
IQ placed her in the mildly mentally handicapped range. (T.XV, p. 113). Her achievement scores indicated that she was 
functioning at the beginning kindergarten level in math and reading. (T.XV, pp.50). Dr. Boyle testified that Catherine needed 
lots of prompting during the testing and that sometimes he had to reword questions to elicit responses from her. (T.XV, p. 75- 
76). 

46. Dr. Boyle's repon recommended continuation of the Lovaas program with Catherine including 15-20 hours of one-on- 
one discrete trial teaching. (Resp. Exh. 60). Dr. Boyle admitted in his testimony that it was not proper to make a placement 
recommendation for a student based solely on testing results, nonetheless, he based his recommendations for placement in the 
Lovaas program solely on his evaluation results. (T.XV, p. 70) Dr. Shea testified that there was nothing in Dr. Boyle's testing 
results which would lead to the conclusion that Catherine needed discrete trial teaching or 15-20 hours of one-on-one. (T. XVIII, 
p. 232). 

47. The Millers also hired Dr. Jan Blacher, an education professor from California, to visit the classrooms for autistic 
students in Henderson County and to observe Catherine in her home program. (T.V, p. 67). Dr. Blacher testified that her area 
of expertise is not autism. (T. VIII, pp. 36-37). In her correspondence with the parents and prior to visiting the school system 
or having any contact with Catherine, Dr. Blacher stated that she would do everything she could to assist them in getting 
funding for their home program. (Pet. Volume 1. E.xh. 2. BS 8817-8818). Dr. Blacher visited the classrooms in August 1996; 
however, none of the opinions or information gathered in Dr. Blacher's visit were shared with school personnel during the lEP 
development process in August and September 1996. (T.V, p. 71). 

48. Dr. Boyle's report was provided to school personnel in early August. (T.IX, p. 27). Ms. Cook testified that in her 15 
years of experience reviewing evaluations she had never received a report where the evaluator had conducted an IQ test but 
failed to provide the score. (T.IX, p. 28). Dr. Shea also noted that it was very uncommon for an evaluator to conduct an IQ test 
and then not report the scores. (T. XVIII, p. 234). 

49. An lEP meeting was held on August 14, 1996, and the Millers attended with their attorneys. (T.IX, 
p.32);(Resp.Exh.68). At that time the committee began developing goals and objectives for the lEP based on the evaluation 
reports, the observations, and the Millers input regarding Catherine's progress in her home program. (T.X, p.l88)(T.IX, 
pp. 42-43). The present level of performance in many areas of the lEP was developed based solely on parent report because no 
other information about Catherine's skill levels was available at that time. (T.X, p. 225). 

50. At this same time, Mrs. Miller's monthly documentation in the home program noted that "Catherine has forgotten a lot 
of information. Much of what she learned was never generalized completely." (Resp.Exh. 197). Mrs. Miller testified that she 
realized Catherine had not generalized skills after receiving Dr. Boyle's report. (T.V, p. 101). 

51. After the August 14 meeting the Millers requested that another meeting be held in mid-September so that their Lovaas 
consultant, Michael Guiou, could attend to participate in the lEP development. (Resp. Exh. 69) (T.Xp.l89). A meeting was 
held on September 13, 1996, which the Millers attended along with Mr. Guiou. (T.IX, pp. 49-51). 

52. Despite the fact that Catherine was having significant behavioral problems at home and in school at that time, the 
Millers and Mr. Guiou did not share that information with school personnel. (T.V, p. 231)(T.IX, pp. 51-52). Mrs. Miller also 
indicated that she could not recall if she had shared information on Catherine's aggressive behaviors with Dr. Boyle and Dr. 
Handleman when they evaluated Catherine. Dr. Boyle testified that he had no information about Catherine's behavioral status at 
the time of his evaluation. (T.XV, p. 68). However, the Millers later criticized school personnel for not having created a 
behavioral management plan for Catherine. (Resp. Exh. 157). 

53. On September 23, 1996, a final lEP meeting was held and the Millers attended along with their attorneys. 
(Resp. Exh. 70); (T.IX, p. 53). At that time the parents and school persoimel all agreed that the goals and objectives on the lEP 
were appropriate. (T.X, p. 190). The committee then discussed possible placements for Catherine. There was extensive 
discussion of her need for one-on-one instruction and her need for development of social and communication skills. The 
committee proposed that Catherine spend half of the school day in a regular kindergarten class with a one-on-one assistant; one 
hour a day working independently with monitoring in Laurie McDanel's classroom for autistic students, and one and a half 
hours a day receiving one-on-one instruction in academic areas in a separate room with Laurie McDanel. (T.X, pp.191, 199). 
The lEP also called for three hours a week of speech services (two hours of direct services and one hour of consultation between 



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the speech therapist and Catherine's teachers). (T.IX, pp.57). 

54. The kindergarten time would be used to work on Catherine's social skills and communication skills because in the 
classroom she would have opportunity for peer modeling and interaction. (T.X, p. 200). The one-on-one instruction could 
include some discrete trial teaching but would not be limited to that one method of instruction. (T.X, pp. 199-200). Ms. 
McDanel described in detail how she would teach each of the objectives in Catherine's lEP. (Resp.Exh. 172-B). In guided 
practice, Catherine would work in her specific work area in the classroom doing work that had been taught in the one-on-one 
setting. (T.X, pp.230). 

55. Laurie McDanel's classroom has two teaching assistants both of whom have been trained to work with autistic students. 
(T.X, p. 7). One of the teaching assistants has an autistic child. (T.X, p. 7). There are seven students who spend some time 
each week in Ms. McDanel's class; four of the students are not in the classroom full-time as they are mainstreamed for parts of 
the school day. (T.X, p. 19). Ms. McDanel testified that had Catherine joined the class, another teaching assistant would have 
been hired for the classroom. (T.X, pp.28, 115). She noted that she would have proposed that Catherine attend the 
kinderganen class for the morning and come to the autistic class in the afternoon. (T.X, p. 1 17). 

56. A primary goal in Ms. McDanel's classroom is to teach the students to work independently. Each student works 
independently for part of the day. Data is kept by the teacher and teaching assistants as to how well the student is completing 
his or her individual work and progress is noted on the student's lEP. (T.X, pp.5 1-52). A daily anecdotal log is kept of the 
each mainstreamed student's progress in the regular classroom. (T.X, p. 54). 

57. Ms. McDanel described the progress of many autistic -students in her classroom, particularly in developing 
independence and communication skills. (T.X, p. 153). To teach functional language, Ms. McDanel attempts to have the 
students communicate about areas of interest by setting up play activities in the classroom and by allowing the student to take 
the lead in choosing activities to communicate about. (T.X, pp. 155-156). 

58. Based on her observation of Catherine in therapy, her review of Catherine's records and her review of videotapes of 
Catherine at Covenant Academy and in her home therapy, Ms. McDanel testified that Catherine was not functioning as 
independently as had been reported by her parents or as independently as other autistic students in Ms. McDanel's classroom. 
(T.X, pp. 192-193). Specifically. Ms. McDanel noted she was concerned that Catherine was unable to do work in a small group 
without constant prompting from her assistant. (T.X, p. 193). Ms. McDanel also stated that Catherine did not display the 
communication skills that many of the students in her classroom have. (T.X, p. 218). This was true despite the fact that Dr. 
Wynn testified that 80 percent of the Lovaas program is "language" and developing communication skills. (T.XIII, p. 1 10). 

59. Sloan Burgess described her role as a consultant to Ms. McDanel's classroom. (T. XVIII, pp. 7-8). Ms. Burgess 
assists Ms. McDanel in educational planning for the students. (T. XVIII, p. 17). Ms. Burgess testified that she had seen great 
progress in the students in Ms. McDanel's class, particularly in the area of language development. (T. XVIII, pp. 19, 49-50). 
Having reviewed a videotape of Catherine in November 1996 at school, Ms. Burgess indicated that she was concerned about 
Catherine's dependence on her assistant and her lack of spontaneous language and initiation of play with peers. (T. XVIII, pp. 
55-56). Ms. Burgess said she would have expected much more progress in those areas had Catherine been in a TEACCH 
classroom for two and a half years instead of in the Lovaas program. (T. XVIII, p. 56). 

60. Dr. Lee Marcus, the Clinic Director of TEACCH in Chapel Hill, testified about the TEACCH program. (Resp.Exh. 
224). In his 23 years working at TEACCH, Dr. Marcus has worked with thousands of autistic individuals. TEACCH's 
primary mission is to work in North Carolina, but Dr. Marcus indicated that TEACCH training and programs are set up in 
every continent except Antarctica and in many states across the U.S. (T.XIX, pp. 36-39). 

6L Dr. Marcus described the underlying philosophy of the TEACCH classroom in fostering independence and 

communication skills in the students. He explained that unlike Lovaas, TEACCH is not a teaching technique but rather an 
umbrella structure for the classroom that allows students to become independent and to use language functionally while working 
on their individualized educational goals and objectives. (T.XIX, pp. 144-147). He noted that TEACCH and Lovaas have 
different philosophies about autism. (T.XIX, p. 139). TEACCH believes that autism is a unique disorder explained by 
cognitive characteristics and that individuals with autism should be provided a structure and taught strategies to make the world 
more understandable to them. (T.XIX, p. 50). The Lovaas approach, on the other hand, believes that autism is a made up of a 
group of behavioral deficiencies which can be repaired so that an individual is "recovered" or becomes "indistinguishable" once 
taught a series of standard programs and drills. (T.XIX, pp. 140-141). Dr. Marcus testified that he has never seen an 
individual who has "recovered" from autism and that he believes it is not a realistic goal for parents. In fact, he stated that such 



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a goal creates expectations which are too high and does not allow for the parents to accept the reality of having a child with 
autism. (T.XIX, pp. 161-174). 

62. Although Dr. Blacher testified that the focus of the TEACCH program was to prepare students for sheltered 
workshops, (T.VII, p. 299) both Dr. Marcus and Sloan Burgess stated that in their experience with the TEACCH program they 
have witnessed myriad outcomes of students ranging from obtaining graduate degrees and having families to working in a 
sheltered workshop. TEACCH's goal is to assist autistic individuals in becoming as independent and functional as possible. 
(T.XIX, pp. 25-28). 

63. Dr. Shea testified that in her opinion the placement proposed for Catherine by the Henderson County Schools was 
appropriate and would benefit Catherine more than a continuation of the Lovaas program. (T. XVIII, p. 238). Dr. Shea opined 
that Catherine's program needed to emphasize functional language and the development of independence, two areas of 
significant weakness which were not being adequately addressed through the Lovaas program. (T. XVIII, pp. 218-219). The 
time in the proposed placement for guided practice and provision for mainstreaming with an assistant to monitor her progress, 
would encourage independence. She noted that the TEACCH approach to teaching communication which is incorporated into 
Ms. McDanel's classroom, could benefit Catherine by lessening the focus on verbal communication and supplementing language 
with visual cues. (T. XVIII, p. 248). Dr. Shea stated that Dr. Boyle's testing and her observations indicated that Catherine is a 
visual learner and the Lovaas focus on oral language appeared overwhelming to Catherine at times. (T. XVIII, pp. 245-246). 

64. Mr. and Mrs. Miller disagreed with the proposed placement for the 1996-1997 school year and stated that they wanted 
the school system to pay for their home Lovaas program. Both Mr. and Mrs. Miller testified that the only program they would 
have accepted for Catherine was the Lovaas program. (T. VI, pp. 1 10). 

65. Although Dr. Blacher testified that the placement proposed by the school system was too restrictive, it was actually less 
restrictive under North Carolina standards than Catherine's home program because it provided for more time per week for 
Catherine to be educated with regular education peers and in the regular school environment. (Resp.Exh.lO)(T.IX, p. 72). 

66. School personnel considered the Millers' request that Catherine be continued in the Lovaas program but believed that 
the school system's proposed program was more appropriate. Judy Cook testified that she believed the Lovaas program was not 
appropriate for Catherine for the 1996-97 school year. (T.IX, p. 73). She stated that the program was too intensive in that it 
required that the child undergo therapy for 40 hours a week (or more in Catherine's case). (T.IX, pp. 73-74). She believed that 
the constant one-on-one caused Catherine to become too dependent on adults and that Catherine's social and communication 
skills were not being effectively developed. (T.VI, p. 132, 144; TIX, p. 74). 

67. Laurie McDanel testified that she believed the proposed program would be better for Catherine for the 1996-97 school 
year than the Lovaas program. (T.X, p. 233). Specifically, she noted that it would allow Catherine placement in a true 
kindergarten class to develop her social and communication skills which are her areas of greatest need. (T.X, p. 233). Also the 
proposed lEP would allow for Catherine to become more independent be spending time each day without consistent prompting 
or one-on-one assistance. (T.X, p. 234). 

68. Rather than enrolling Catherine in the respondent's schools for the 1996-97 school year, the Millers continued to 
implement the Lovaas program. Mr. Miller testified that the total expected cost of the home program for the 1996-97 school 
year would be between $45,000-550,000. (T.XVII, pp. 19-21). Judy Cook testified that the average amount spent on autistic 
students by the county is $11,000 a year (T.IX, p. 180) and that offering the Lovaas program to any autistic student in the 
county whose parents requested it would have a staggering financial impact on the school system. (T.IX, p. 92). Ms. Cook 
additionally noted that in light of her significant concerns about the Lovaas therapy, even if she had unlimited funds she would 
not recommend Lovaas therapy for students. (T.IX, p. 94). 

69. Mrs. Miller testified about her administration of Catherine's Lovaas program prior to the 1996-97 school year. She 
stated that she had hired 20 different therapists to work with Catherine between December 1993 and December 1996. Many of 
the therapists worked for less than six months with Catherine. (T.IV, pp. 154-175). Most of the therapists had no background 
in education and no experience working with children with autism. (T.IV, p. 184). 

70. Caroline Dilworth was hired by the Millers in June 1995 after just completing college with a degree in psychology. 
(T.XII, p. 7). She had no previous experience working with autistic students or the Lovaas program. During the 1995-96 
school year she served as Catherine's one-on-one assistant in her private school classroom. Dr. Jacqueline Wynn, the assistant 
director of the Lovaas Institute, testified that the Lovaas program recommends that an assistant have at least nine months of 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1209 



CONTESTED CASE DECISIONS 



experience in the program before accompanying a child into a classroom and the bare minimum would be six months of 
experience. (T.XIII, pp.78, 218). Caroline had just two months of experience when she went with Catherine to school. 
(T.XIV, p. 172). 

71. Beginning in September 1996 Caroline Dilwonh took over the position of administrator of Catherine's program. She 
and the Millers testified she worked full-time, at approximately fony hours a week, for the Millers. Ms. Dilwonh testified that 
Catherine's program consists of over 47 hours weekly including home therapy, school, peer play and speech therapy. (T.XIV, 
p. 174). There are three other therapists who work with Catherine. (T.XIV, p. 189). Dr. Wynn testified that the Lovaas 
program recommends only between 35-40 hours a week of therapy. (T.XIII, p. 249). The information materials of the Lovaas 
Institute provided to the Millers describe the workshops like the Millers that are distant from UCLA and coordinated by a 
consultant as being only 30 hours per week. (RExh. 184, p. 4). 

72. Mrs. Miller testified that program changes were made by Michael Guiou who conducts two day workshops with the 
therapists every three months. (T.IV, p. 188). Mr. Guiou at the time he began working with Catherine had recently graduated 
from college. He works in Los Angeles and is available by phone to discuss Catherine's program. Dr. Marcus indicated 
concern with this consultation model in which program changes are made by an individual who is so far removed from the 
student. (T.XIX, p. 156). 

73. Catherine attends a Christian academy for four and a half hours a day and is accompanied by Caroline Dilworth. Ms. 
Dilwonh also provides therapy at home and during peer play. (T.XIV, pp. 191-192). Ms. Dilwonh acknowledged that 
although the Lovaas program ad\'ises that one therapist not spend more than 15 hours with a child each week, she spends 
approximately 27 hours a week with Catherine. (T.XIV, pp. 192-194). The Lovaas program literature indicates that too much 
time with one therapist can lead to dependence by the child on the individual therapist. (Resp.Exh.174). 

74. At the begiiming of the 1996-97 school year there were six students in Catherine's class at Covenant Academy. Until 
February 1997 the class was taught by Tina Salter who had little teaching experience and no experience working with students 
with autism. Ms. Dilwonh testified that Ms. Salter did not do a good job using classroom materials and structuring the school 
day. (T.XIV, pp. 178-179). Ms. Salter was terminated from her employment at Covenant Academy in late fall and replaced by 
Kate Scharstein, a parent of an autistic student, was a college graduate but who had no training or experience as a teacher. 
(T.XIV, p. 145). 

75. By the time of the hearing in March there were eight full time students and two pan time students in the class. 
Catherine had been in a class with approximately 15 students during the past two school years. (T.VI, p. 17). Dr. Wynn stated 
that the Lovaas program's goal was to gradually introduce a student into social and group settings as therapy progressed. 
(T.XIII, p. 217). She stated that a class size of 14-15 students, like Catherine's class during the 1994-96 school years and 
similar to the regular kinderganen class proposed in the Henderson County schools, was the right size class. (T.XIII, p. 218). 
She indicated that if the class was much smaller, like Catherine's class at Covenant Academy during the 1996-97 school year, 
problems might occur. (T.XIII, p. 218). Dr. Wynn also stated that where an autistic student is functioning socially and in 
language skills at the kinderganen level (even if the student is older than kinderganen age), the appropriate placement for 
working on those skills would be a kinderganen class. (T.XIII, pp. 221-222). She acknowledged that The Me Book , written by 
Dr. Lovaas, states that the age of the classroom grouping is not as imponant as the functioning level of the peers in the class. 
(T.XIII, p. 222). 

76. Ms. Dilwonh stated and her records reflected that she frequently removed Catherine from the Covenant classroom 
either for bad behavior or when Catherine was distracted and not paying sufficient attention to her classwork. (T.XIV, p. 294). 

77. While in Catherine's classroom. Ms. Dilwonh also provided assistance to other students. This included assisting the 
students with religious instruction. (T.XIV, p. 294). 

78. Dr. Wynn described the Lovaas program as being composed of a hierarchy of skills. (T.XIII, p. 97). She stated that 
documentation of mastery was vital to the program because it illustrates when the student is ready for the next skill to be taught. 
(T.XIII, p. 97). Mrs. Miller described thousands of pages of logs kept on Catherine's program. However, she also 
acknowledged and the documents revealed that many skills once thought "mastered" by Catherine had to be retaught. (T.V, 
p.l01)(Resp. Exh. 197). (T.XVII, p. 217). Kate Scharstein, a witness for the Millers and the parent of an autistic student who 
also was using the Lovaas program, stated that in her experience with the program she never had to reintroduce a skill to her son 
as once a skill was "mastered" it no longer had to be worked on. 



1210 NORTH CAROLINA REGISTER Januarys 2, 1998 12:13 



CONTESTED CASE DECISIONS 



79. There was no testimony that Catherine needed the Lovaas method in order to make progress. In fact, Kate Scharstein, 
her teacher and Karen Perella, her speech therapist, testified that they did not exclusively use the Lovaas method when working 
with Catherine. Ms. Dilworth testified that beginning in February 1997, Lynn Gilpin began working in the Covenant classroom 
one day a week to teach reading to the students. Ms. Gilpin had no Lovaas training. She worked with Catherine one-on-one on 
reading and did not use the discrete trial method. (T.XIV, pp. 157-158). 

80. The testimony and evidence indicated that Catherine developed aggressive behaviors including biting, kicking and head 
butting while in the Lovaas program. Mrs. Miller testified these behaviors developed after two years of Lovaas therapy. The 
monthly reports prepared by Caroline Dilworth for Michael Guiou show that aggressive behaviors were of significant concern in 
the fall of 1996 and as late as January 1997 both at home and in school. (T.VL pp. 100-106). (Resp.Exh.198). 

81. Mrs. Miller and Caroline Dilworth testified that Michael Guiou recommended a variety of behavioral techniques to use 
with Catherine and none of the techniques were successful. (T.IV, pp. 242-243). Ultimately, Mrs. Miller decided to start 
spanking Catherine for her aggressive behaviors. (T.VI, pp. 10-11). Dr. Shea testified that her review of Catherine's 
behavioral records led her to the conclusion that the behavioral techniques used with Catherine did not address the probable root 
causes of the behavior but rather simply punished Catherine for the behaviors. (T. XVIII, p. 186). Dr. Shea noted that 
negative behaviors are typically seen with autistic students when they are frustrated by an inability to understand language or 
social nuances. (T. XVIII, p. 181). No effort was made to modify Catherine's environment to reduce these frustrations; rather, 
Catherine was punished for her behavior. 

82. Karen Perella, Catherine's speech therapist, testified that she did not see any aggressive behaviors in therapy where she 
did not use a strict Lovaas approach and she was not aware that aggressive behaviors were a problem. (T.XV, p. 242). She 
acknowledged that if Catherine were exhibiting aggressive behaviors it would cause her significant concern. (T.XV, p. 243). 

83. Laurie McDanel, Faye Arledge and Sloan Burgess testified that in their experience working with autistic students in the 
TEACCH classrooms, it was very rare for a student's behavior to get worse with time. In fact, they each testified that students' 
behaviors typically became better in the classroom as they learned to communicate and learned the classroom routine. (T.X, p. 
194; T. XVIII, p. 64). Dr. Wynn testified that aggressive behaviors are typically seen at the beginning of a child's program and 
decrease over time. (T.XIII, p. 245). She stated that it would be unusual to see a child's aggressive behaviors increase over 
time. (T.XIII, p. 246). 

84. There was no testimony regarding how long the Lovaas therapy would need to be continued with Catherine. Dr. Wyim 
testified students stay in the program six years or longer and that there is no typical time frame. (T.XIII, pp. 131-135, 217). 
When asked about the length of Catherine's program, Mrs. Miller stated that Michael Guiou would have to answer that 
question. (T.IV, p. 197). When pressed, Mrs. Miller noted that Catherine was close to the end of the formal programs and that 
"the next few years" would be fine-tuning her skills in the program. (T.IV, p. 197). Later in cross-examination she stated there 
was a lot of fine-tuning to be done and she did not know whether Catherine was near the end of her programs. (T.VI, p. 1 10). 
Michael Guiou was never called to testify by petitioners. 

85. In February the Millers took Catherine to be reevaluated by Dr. Boyle. (Resp. Exh. 62). The testing showed that 
Catherine's academics were still on beginning kindergarten level (as they had been during his testing eight months earlier). 
(T.X, p.225-226)(Resp.Exh.61). Although Catherine could decode words at the beginning second grade level she was 
completely unable to perform on the comprehension tests. (T.X, p. 226). The IQ testing again showed Catherine to be 
functioning in the mild mentally handicapped range. (Resp. Exh. 61). 

86. Dr. Boyle also conducted some testing of Catherine's expressive and receptive language. (Resp. Exh. 61). Karen 
Perella testified that when comparing her results of testing Catherine in 1995 with Dr. Boyle's 1997 results, Catherine had not 
made much progress panicularly in her receptive language. T.XV, p. 239). 

87. The Lovaas study cited by petitioners which found 47% of the nineteen subjects "indistinguishable" after three years of 
Lovaas therapy, relied on two criteria for determining whether a student was "indistinguishable": an IQ score in the normal 
range and the child's placement in a regular education class without assistance. (Pet. Exh. 7, 1 1, p. 5); (T.XIII, p. 186). Eight 
other students who were not in the best outcome group showed improvement in verbal skills and in reduction of behaviors. 
(T.XIII, p. 190). Dr. Wynn testified that an IQ score after three years in the program could be used as a good predictor of the 
child's school performance. (T.XIII, pp.238, 239). 

88. Based on Catherine's IQ score and class placement she is not in the Lovaas "best outcome" group and she also has not 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1211 



CONTESTED CASE DECISIONS 



shown improvement m reduction of negative behaviors durmg her three and a half years in the program. (Resp.Exh.61, 
Pet.Exh.7, Lovaas Studies, p. 81). In fact her negative behaviors increased over her 3 years in the Lovaas program. Dr. 
Marcus testified that his review of Catherine's records did not reveal evidence of significant progress durmg the three year 
period she had been in the Lovaas program. (T.XIX. p. 183). 

89. Dr. B.J. Freeman, a professor of Medical Science at the University of California at Los Angeles and an expert in 
autism, testified that she reviewed Catherine's records, watched videotapes of Catherine, and observed in the two TEACCH 
classrooms in the Henderson County schools. (T.XVI, pp. 1 16-122). 

90. Dr. Freeman was involved in diagnosing almost all of the students in the original Lovaas study, has trained in discrete 
trial methodology, is familiar with the literature on the Lovaas methodology, and has worked with students who have been in 
the Lovaas program. (T.XVI, pp. 56-62). She testified that the Lovaas methodology remains very experimental and that it is 
not a good method for teaching students functional language and that its focus on instruction for 40 hours a week or more is too 
intense for young students. (T.XVI, p. 78). 

91. Dr. Freeman stated that she believed the Lovaas program was not appropriate for Catherine for the 1996-97 school 
year. She believed that it was time for Catherine to tr\' new techniques. She recognized, and observed in Laurie McDanel's 
classroom, that one-on-one discrete trial leaching was utilized with reinforcements (T.XVI, pp. 267-268). She testified that 
although it was clear Catherine developed some skills early in the program, her immediate needs reflected in her evaluations and 
in the goals agreed to in the lEP in the areas of communication, independence and socialization required a change in program. 
She stated that it was clear the Lovaas program was not properly addressing these areas of weakness which are the areas of core 
deficit in autism. (T.XVI, p. 209). Specifically, she pointed to the results of Dr. Boyle's testing which showed significant 
receptive language difficulties. (Resp.E.\h.61)(T.XVI, pp. 110-114). 

92. Dr. Freeman testified that the TEACCH program is considered a model program and has been adopted all over the 
world. (T.XVI, p. 91). Her experience in observing in TEACCH classrooms is that the TEACCH model provides a structure 
which allows students to become independent and to develop functional language through a natural language environment. 
(T.XVI, pp. 84-85). She testified that she obser\'ed Ms. McDanel's classroom and observed autistic students being 
mainstreamed into regular kindergarten and first grade classes. (T.XVI, p. 143). She believed that the regular kindergarten 
class and Ms. McDanel's class were both appropriate for Catherine. (T.XVI, p. 153-155). Dr. Freeman indicated that she 
would like to see the amount of one-on-one assistance for Catherine reduced as quickly as possible so that Catherine can leam to 
work independently in more normalized settings. (T.XVI, p. 155). 

93. Dr. Marcus and Ms. McDanel testified about the imponance of having a teacher with a degree in teaching and specific 
knowledge of autistic students working with Catherine because the individual needs to know the continuum of educational steps 
needed to teach a particular skill. (T.XIX, pp. 153-155) (McDanel, TX, p. 114). Dr. Wynn testified that despite the fact that 
students are now staying in the Lovaas program beyond pre-school, her staff does not have training or course work on the 
standard curriculum for elementary school grades in terms of teaching reading, math and writing in a sequenced method. 
(T.XIII, pp. 256-257). 

94. Judy Cook testified that the Millers in lEP meetings requested that she "guarantee" that Catherine would not regress 
with a change of programs. (T.VIII, p. 114). Ms. Cook testified that she did not believe Catherine would regress in the 
proposed program but that she could not make a "guarantee" to the parents. (T.VIII, pp. 115-1 16). Although Dr. Blacher 
testified that the research showed that students regress with a program change, none of the experts on autism agreed with her. 
Dr. Freeman testified that she knew of no research which showed such regression. (T.XVI, p. 162). Dr. Shea testified that the 
IE? itself was structured to facilitate Catherine's transition from the Lovaas program to the school system environment. 
(T. XVIII, p. 241-246). As a result, she did not believe Catherine would regress if enrolled in the Henderson County schools. 
She noted that Catherine might forget material that she had memorized in Lovaas therapy which had no functional value, but 
that regression should not be e.xpected to occur. (T. XVIII, p. 244). Dr. Marcus testified that he would not e.xpect a child to 
regress simply by moving from one type of program to another. (T.XII, pp. 181-182), He stated that he would expect 
Catherine to do well within the TEACCH structure since her testing indicated that she is a visual learner. (T.XIX, pp. 182- 
183). 

95. Petitioner presented e\idence supporting the premise that Catherine is, as all Lovaas trained children are, to be weaned 
from the Lovaas program as she progresses and achieves independence in group settings. Catherine's proposed lEP includes the 
assistance of a one-on-one aide or shadow provided by the public school system. Catherine's assistant needs to be trained in 
the Lovaas method to assist Catherine in her transition to the public school system. 



1212 NORTH CAROLINA REGISTER Jauuan' 2, 1998 12:13 



CONTESTED CASE DECISIONS 



Based upon the foregoing Findings of Facts, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. The IDEA, 20 U.S.C. § 1400 et seq., is the federal statute governing education of students with disabilities. 
The federal regulations promulgated under the IDEA are codified at 34 C.F.R. Parts 300 and 301. 

2. The controlling state law for students with disabilities is N.C.Gen.Stat. Section 115C Article 9 and the 
corresponding state regulations including the State Procedures Governing Programs and Services for Students With Special 
Needs Sections 1501-1541 (1993). 

3. Catherine is a student with a disability for purposes of the IDEA and corresponding State law. 

4. Respondent is required under federal and state law to make available special education and related services to 
Catherine and to offer her a free appropriate public education as that term is defined under the IDEA, and State Procedures. 

5. At its core, the dispute between the parties is a debate over a choice of educational methodology for the 
teaching of autistic children. The two methods at issue are the Lovaas method and the TEACCH method. 

6. It is the province of the school district and local educators, and not that of the courts, to choose sound 
educational methods when implementing the provisions of IDEA. Bd. of Education v. Rowley, 458 U.S. 176 (1982); Hartmann 
V. Loudon, 1 18 F.3d 996 (4th Cir. 1997); Barnett v. Fairfax County Sch. Bd., 927 F.2d 146 (4th Cir. 1991). 

7. In the absence of procedural or substantive violations of law, courts will not order school authorities to 
implement a particular educational method when the school has chosen an appropriate educational method. 

8. Respondent has complied with all procedural safeguards required by IDEA. 

9. Respondent has implemented the TEACCH model and it is an appropriate program for the education of autistic 
students. 

10. A free appropriate public education, as required by IDEA is one that is reasonably calculated to allow the 
child to make reasonable progress. 

1 1 . Under North Carolina law, respondent is required to provide petitioner a sound basic education commensurate 
with that given other students. Leandro v. State of North Carolina, No. 179PA96, 1997 N.C. LEXIS 486 (N.C. July 24, 
1997); Harrell v. Wilson County, 58 N.C. 260 (1982); G.S. §115C et. seq. The state standard for an appropriate education is 
higher than required by federal law. The State is to ensure that every child receives a fair and full opportunity to reach his full 
potential. G.S. ' 1 15C-106. However, this does not mean that a school system must provide Utopian educational programs for 
children with special needs anymore than they are required to provide Utopian ecucational programs for nonhandicapped 
students. Harrell, supra. Respondent's educational program offered to Catherine the opportunity to receive a sound basic 
education commensurate with that given to other autistic students. 

12. Respondent's educational program offered to Catherine during the 1996-97 school year, with one exception, 
was reasonably calculated to allow Catherine to make educational progress and to provide Catherine with a free appropriate 
public education in compliance with the IDEA and state law. In order for Cathrine to maximize the opportunity provided to her 
in the public school system, respondent's educational program for the 1996-97 school year should include a provision that the 
one-on-one assistant provided by the school system be trained in the Lovaas method to assist Catherine in her transition to 
public school. 

13. The Lovaas program has been of value to Catherine during her preschool years. However, this was a choice 
made by Catherine's parents just as any parent makes a choice regarding private schooling. The Lovaas program implemented 
during the 1996-97 school year is not provided in the least restrictive envirorunent and is no longer appropriate to meet 
Catherine's needs. 

14. When choosing an educational method, the school district may consider as a factor the feasibility of 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1213 



CONTESTED CASE DECISIONS 



implementing a panicular method. Barnelt v. Fairfax County Sch. Bd., 927 F.2d 146 (1991). Implementation of the Lovaas 
method is not feasible and is unduly burdensome on the school system. 

15. Petitioners are not entitled to reimbursement for the 1996-97 school year because the educational program 
offered by respondent is appropriate as defined by IDEA. Burlington School Comm. v. Massachusetts Department of 
Education. 471 U.S. 359 (1985). 

16. Petitioners are not entitled to compensatory education for the 1993-1996 school years because they claim that 
petitioner received an appropriate education during that time period. 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following 

FINAL DECISION 

1. Catherine Miller's proposed lEP for the 1996-1997 school year was appropriate; however, in order for the 

lEP to provide the maximum educational benefit to her, the one-on-one aide should be trained in the Lovaas 
method (discrete trial method) in order to assist Catherine in the transition to the public school system and the 
TEACCH program. 

2. This cause is retained for further orders as may be just and proper. 

NOTICE 

In order to appeal this Decision, the person seeking review must file a written notice of appeal with the North Carolina 
Superintendent of Public Instruction. The written notice of appeal must be filed within thirty (30) days after the person is 
served with a copy of this Decision. G.S. ' 1 15C-1 16(h) and (i). 

This the 1 1" day of December, 1997. 



< 



( 



Meg Scott Phipps 
Administrative Law Judge 



i 



1214 NORTH CAROLINA REGISTER January 2, 1998 12:13 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF LENOIR 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

96 OSP 1665 



SHARRON S. MOTEN, 
Petitioner, 



LENOIR COUNTY DSS 
JACK B. JONES, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before the undersigned administrative law judge in New Bern, North Carolina, on June 17 and 



18, 1997. 

For Petitioner: 
For Respondent: 



APPEARANCES 

Demyra R. McDonald, Attorney at Law, Kinston, North Carolina. 

Griffin & Griffin, Attorneys at Law, Kinston, North Carolina; Thomas B. Griffin appearing. 

ISSUES 

1. Did the Petitioner voluntarily resign without notice from her job on September 12, 1996? 

2. Was the Petitioner terminated without just cause? 

3. Was the Petitioner's termination done in retaliation for her filing of previous internal grievance and filing a Petition for 
a Contested Case Hearing in the Office of Administrative Hearings, file number 96 OSP 1 100? 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §126-35 

25NCAC ID .0518 

29 U.S.C. §26I2(a)(l)(D) 

29 CFR §825 

EXfflBITS 

The following exhibits offered by the Petitioner were received in evidence: 

PI . February 21 , 1994 FMLA WH-380 med. cert, for father 

P2. February 28, 1995 FMLA WH-380 med. cert, for father 

P3. April 24, 1995 FMLA WH-381 Eer response for father 

P4. April 24, 1996 FMLA Request 

P5. April 30, 1996 J. Jones response 

P6. May 1, 1996 S.M.'s response 

P7. May 13, 1996 from J. Jones approval of FMLA 

PIO. July 10, 1996 from D.R. McDonald to J. Jones 

PI 1 . July 23, 1996 from D.R. McDonald to J. Jones 

PI2. August 21, 1996 from D.R. McDonald to T. Griffin 

PI 3. September 5, 1996 from J. Jones to S. Moten 

P14. September 9, 1996 from D.R. McDonald to T. Griffin 

P15. September 12, 1996 

P16-24. FMLA relevant policy provisions 



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NORTH CAROLINA REGISTER 



January 2, 1998 



1215 



CONTESTED CASE DECISIONS 



i 



P25. Leave without Pay - Lenoir County Personnel Policy 

P26. Voluntary Resignation - N.C.A.C. section ID. 0518 

P27. Investigatory Suspension - N.C.A.C. Title 25, p 118.1, Supplement 95, Number 9 September, 1995 

P28. Remedies for Procedural Violations - N.C.A.C. Sec. IB. 0432 

P29. May 15, 1996 phone conversation J. Jones dated and signed 

P30. August 23, 1996 phone conversation S. Moten 

P31. August 23, 1996 phone conversation J. Jones 

P32. Child Fatality Task Foirce - purpose statement 

P33. March 29, 1996 - review of child fatality - disp. action threatened 

P34. July 22, 1996 - CFTF not coming 

P35. April 3, 1996 memo from Delores Bunch 

P36. Jefferson Pilot Dis. Form 

P37. Kinston Daily Free Press - April 26, 1996 

P38. Kinston Daily Free Press - April 28, 1996 

P39. N.C.G.S. Sec. 126-37 

The following exhibits offered by the Respondent were received in evidence: 

Rl. Daily Time Record for Sharron Moten for August, 1996 

R2. Daily Time Record for Sharron Moten for September, 1996 

R5. Letter dated September 5, 1996 to Ms. Sharron Moten from Jack B. Jones 

R6. Letter dated September 12, 1996 to Ms. Sharron Moten from Jack B. Jones 

R25. Letter dated April 26, 1996 to Delores Bunch from Sharron Moten 

R40. Draft Letter dated August 29, 1996 to Ms. Sharron Moten from Jack B. Jones 

R42. Jefferson Pilot Disability Insurance claim form for Sharron Moten 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and admissible 
evidence, the undersigned makes the following: 

FINDINGS OF FACT ^ 

1. The Petitioner last worked for the Respondent on August 26, 1996, as a Social Worker III. 

2. At the time that her employment with the Respondent was terminated, the Petitioner had been employed with the 
Respondent approximately nine years. 

3. The Petitioner was notified in March 1996 that she had a fatality in her caseload and was told that her caseload was 
being investigated by the Child Fatality Task Force in Raleigh. 

4. The Petitioner had filed for Family Medical Leave in February 1994 and February 1995 to accompany her father to his 
doctor's appointments at various times. Both leave requests were approved by the Respondent. 

5. The Petitioner had made various complaints of being harassed by the Respondent's director, Mr. Jack Jones, to her 
supervisor and to Mr. Jones. 

6. In a letter to her immediate supervisor, Ms. Deloris Bunch, dated April 24, 1996, the Petitioner requested leave 
without pay for a period of thirty days. The reasons for the request included the Petitioner's emotional and mental 
anguish resulting from her father's terminal illness and Mr. Jones' alleged continued harassment of and retaliation 
against the Petitioner. 

7. Mr. Jones denied the Petitioner's request by letter dated April 30, 1996. The letter indicated that the Petitioner's leave 
request, as written, was not one which would normally be granted under either the leave without pay policy or the 
family medical leave policy. Mr. Jones requested certification from the Petitioner's medical care provider. 



The Petitioner provided the necessary certification. Leave without pay was granted from April 25, 1996 through May 
31, 1996, under the Respondent's family medical leave policy. The certification form indicated that the Petitioner 
suffered from anxiety due to family situation, situational anxiety /depression, reactive hypertension, and abnormal 



1216 NORTH CAROLINA REGISTER January 2, 1998 12:13 



I 



CONTESTED CASE DECISIONS 



bleeding. 

9. Mr. Jones specifically stated in his response granting the Petitioner's FMLA Request that the Petitioner could be 
required by the Respondent to provide medical recertification during the FMLA period, which is twelve (12) weeks, 
but only if requested by the Respondent. 

10. The Petitioner and a co-worker, Ms. Felicia A. Baker, approached the Depanment of Social Services Board of 
Directors ( Board ) through its chairperson, Ms. Marsha Higgins, and asked for an opportunity to meet with the Board 
to present their grievances. 

1 1 . The Petitioner had complained of racial harassment and unfair treatment by the Respondent's director. Jack B. Jones. 

12. The Petitioner complained that these grievances were not dealt with in a fair and impartial manner because the director 
himself was the party to whom these grievances had to be appealed. 

13. The Board was asked by the Petitioner and Ms. Felicia A. Baker for permission to bring these persormel grievances 
before the Board. 

14. The Board voted in April 1996 not to hear or otherwise get involved in any personnel matters except the hiring, firing 
and possible evaluation of the Director of the Department of Social Services. 

15. The Board refused to hear the Petitioner's grievances. 

16. The Petitioner made numerous other attempts to appeal her grievances to various bodies, including going before the 
Lenoir County Board of Commissioners on July 1, 1996, and requesting that the County's Advisory Persoimel Board 
be put into place pursuant to the Lenoir County Persormel Policy so that her grievances and the grievances of other 
county employees could be heard. 

17. The Lenoir County Board of Commissioners denied the Petitioner's request. 

18. The Petitioner's attorney sent a letter dated July 10, 1996 to the Respondent informing it of the emotional stress that 
the Respondent's actions caused the Petitioner and requested that the Petitioner be placed on investigative status until 
such time as the ongoing "investigation" of her was completed. 

19. The Respondent was also made aware of the Petitioner's illness due to her becoming ill while at work and while in the 
presence of Mr. Jones. 

20. In a letter prepared by her attorney, the Petitioner requested leave without pay again on August 21, 1996. The letter 
informed the Respondent that the Petitioner's illness was due in some way to the stress created by the work 
environment and further stated that medical certification would be provided if the Respondent requested. 

21. Mr. Jones called the Petitioner at home on August 23, 1996 (although he had been informed in writing by the 
Petitioner's attorney that contact with him caused the Petitioner emotional harm), informing her that her leave request 
was not sufficient but telling her only to make sure she followed the rules and giving her no additional information. 
Mr. Jones did not request medical certification even though the Petitioner had informed him that such certification 
could be provided if requested. 

22. Despite the Department of Social Services Board of Directors' April 1996 decision not to hear persoimel matters, Mr. 
Jones went to the Board and requested the Board's assistance in dealing with the absences of the Petitioner and Ms. 
Felicia A. Baker. 

23. The Board discussed the matter at length and recommended that the Voluntary Resignation Without Notice Policy 
appeared to be the most appropriate manner of dealing with the situation. 

24. Mr. Jones did not inform the Board that the Petitioner was contending that the ongoing investigation of her was 
creating a stressful situation that was affecting her mental and physical health. 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1217 



CONTESTED CASE DECISIONS 



25. Mr. Jones was personally aware of the Petitioner's close relationship with her father and her problems coping with her 
father's illness and care. The Petitioner's father's illness was common knowledge at the agency. 

26. Mr. Jones did not inform the Board that the Petitioner's father was terminally ill and she was having problems coping 
with his illness and care. 

27. There was no discussion of the Petitioner's eligibility for FMLA at the time the Board made its recommendation to Mr. 
Jones. 

28. The Petitioner had given notice to the Respondent on numerous occasions prior to September 5, 1996, that she was ill 
and that she could not return to the work environment because the work environment was the cause of her illness or 
that the work environment aggravated her medical condition. 

29. The Petitioner was mailed a letter from the Respondent dated September 5, 1996, informing her that she was to report 
to work at 8:30 a.m. on September 9. 1996. or her failure to return to work would be classified as a Voluntary 
Resignation Without Notice and her employment with the Lenoir County Department of Social Services ( DSS ) would 
be terminated. 

30. The Petitioner's father became ill again during the weekend prior to Monday, September 9. 1996. 

31. The Petitioner took her father to his physician on Monday, September 9, 1996, at appro.ximately 8:00 a.m. and left the 
doctor's office to go to DSS. arriving at DSS at approximately 8:40 a.m. 

32. The Petitioner was experiencing stress related to her father's illness and her own excessive vaginal bleeding on the 
morning of September 9, 1996. 

33. The Petitioner informed Ms. Bunch that she was too ill to work and was en route to a doctor's appointment. 

34. Ms. Bunch informed the Petitioner that she could not authorize leave for her and that the Petitioner would need to 
speak directly with Mr. Jones. 

35. The Petitioner declined to speak with Mr. Jones and left the DSS office. 

36. When the Petitioner left DSS. she returned to the doctor's office to be with her father. 

37. The Petitioner's father was admitted to the hospital on September 9, 1996, by his physician and remained hospitalized 
until September 12. 1996. The Petitioner was advised that her father probably had only a couple of weeks to live when 
his doctor released him from the hospital. 

38. The Petitioner's father died on September 27, 1996. 

39. The Petitioner's attome>' sent another letter on September 9, 1996, again requesting that the Respondent place the 
Petitioner upon leave without pay for numerous reasons, including that the Petitioner was suffering from emotional 
and physical illness and informing the Respondent that medical certification could be provided upon request. 

40. The Petitioner had a balance of FMLA on September 9, 1996. 

4L The Petitioner recei\ed a letter dated September 12. 1996 informing her that her failure to return to work on September 
9, 1996 had been designated a voluntar)' resignation without notice and that she had no right to appeal such action. She 
was funher informed that her employment with the Depanment of Social Services was terminated due to her failure to 
return to work as prescribed in the September 5, 1996 letter. 

42. The Petitioner brought this action through filing a petition with the Office of Administrative Hearings for a contested 
case more than thirty (30) days after she received the letter of termination. 

43. The termination was entitled by the Respondent, a "Voluntary Resignation Without Notice which has no right of appeal. 



1218 NORTH CAROLINA REGISTER January 2, 1998 12:13 



CONTESTED CASE DECISIONS 



44. The Respondent at no time gave any additional or alternative written notice of appeal rights to the Petitioner. 

45. The Petitioner ultimately had a hysterectomy in November 1996 to correct the complications she was experiencing 
regarding excessive bleeding. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. Pursuant to Chapters 126 and 150B of the North Carolina General Statutes, the Office of Administrative Hearings has 
personal and subject matter jurisdiction to hear the Petitioner's appeal and to issue a Recommended Decision to the 
State Personnel Commission. 

2. The State Personnel Commission has authority to render an advisory opinion to the Respondent which will render the 
Final Decision in this matter. 

3. The Respondent contends that the Petitioner's employment was terminated due to her voluntary resignation without 
notice. 

4. The provisions of the North Carolina Administrative Code governing voluntary resignation without notice provide as 
follows: 

An employee voluntarily terminates employment with the state by failing to come to work 
without giving written or verbal notice to the employing agency . Such a failure shall be 
deemed to be a voluntary resignation from employment without notice when the employee is 
absent without approved leave for a period of at least three consecutive, scheduled work 
days. Separation pursuant to this Rule should not occur until the employing agency has 
undertaken reasonable efforts to locate the employee and determine when or if the employee 
is intending to return to work. This provision also applies when the employee is absent for 
at least three consecutive, scheduled work days and does not report in to the appropriate 
supervisory personnel on a regular basis satisfactory to the employing agency. Such a 
separation is voluntary separation from state employment and creates no right of grievance or 
appeal pursuant to the State Personnel Act (G.S. Chapter 126). 

25 NCAC ID .0518. (Emphasis added). 

5. There are two primary elements to a voluntary resignation without notice: (a) failure to provide notice and (b) failure to 
report to work. In the Petitioner's case, she reported to work, but did not stay. She attempted to provide notice by 
informing her immediate supervisor of her illness and, later, by having her attorney write to the Respondent. Thus the 
Petitioner's particular circumstances fail to meet the criteria that are necessary for designating her absence from work 
as voluntary resignation without notice. 

6. The Respondent did not have just cause for designating the Petitioner's absence from work a voluntary resignation 
without notice. 

7. Absenteeism from the workplace can result in disruption of the work flow and is, therefore, a legitimate employer 
concern. Chronic absenteeism or extended periods of absence, can in appropriate circumstances, result in the 
termination of the employment relationship due to either just cause, unavailability for work, or voluntary resignation 
without notice. When medical issues are involved in the employee's reason(s) for being absent, the Family and 
Medical Leave Act ( FMLA ) may come into play. 

8. The Petitioner has the burden of proving her eligibility for leave under the FMLA. To prove her eligibility for FMLA 
leave, the Petitioner must give notice of the need for leave and establish that she has a qualifying reason for the leave. 

9. The Petitioner seeks to establish her entitlement to leave under the federal Family and Medical Leave Act pursuant to 
the provisions pertaining to leave for a serious health condition that makes the employee unable to perform the 
functions of the position of such employee and leave to care for an immediate family member with a serious health 



12.13 NORTH CAROLINA REGISTER January 2, 1998 1219 



CONTESTED CASE DECISIONS 



condition. 29 U.S. C. §2612(a)(l){D), 29 C.F.R. §825.112. 

10. When giving notice of the need for leave, an employee is not required to expressly assert FMLA rights or even mention 
the FMLA to meet her obligation to provide notice under the Act. 29 C.F.R. §825.303. 

11. As early as July 10, 1996, the Respondent was aware that the Petitioner was requesting leave due to stress that was 
affecting her mental and physical health. The fact that the stress that was affecting the Petitioner's mental and physical 
health was due to job related incidents does not automatically make the health condition a non-qualifying reason for 
FMLA leave. 

12. The Petitioner provided such notice of her illnesses as was practicable based on all the facts and circumstances of her 
situation, both in terms of the timing of the notice and its content. Manual V. Westlake Polymers Corporation, 66 F.3d 
758, 763 (5th Cir. 1995). 

13. Once Respondent was aware that the Petitioner was requesting leave due to an emotional and physical illness, it was 
the Respondent's duty to make whatever inquiries were necessary in order to determine whether Petitioner's absences 
should be designated as FMLA. 29 CFR §825.208. 

14. The Respondent's failure to request medical certification when the Petitioner had informed it that such certification was 
available if the Respondent required it in order to determine the validity of the Petitioner's leave request was a 
violation of the FMLA. 

15. The Respondent failed to make whatever further inquiry it needed to determine whether Petitioner's absence should 
have been designated as FMLA leave. As a result, the Petitioner was dismissed for absences which might have been 
covered by the FMLA. 

16. It is the employer's responsibility to designate leave, paid or unpaid, as FMLA leave and to give employees notice of 
this designation. Thus, in circumstances where an employer wishes to designate leave, but has insufficient information 
about the leave to do so, the employer is under an affirmative obligation to inquire further as to whether the leave is for 
an FMLA-quali tying purpose. 

17. The Respondent cannot terminate the Petitioner's employment until it makes a determination of whether or not her 
leave request qualifies for FMLA. In this instance, the Respondent should have requested medical certification. The 
Respondent did not make such an inquiry in this case. 

18. There is insufficient evidence in the record to establish that the Respondent terminated the Petitioner in retaliation for 
her having filed previous grievances or filing a Petition for a Contested Case Hearing in the Office of Administrative 
Hearings, file number 96 OSP 1 100. 

RECOMMENDED DECISION 

It is recommended that the agency adopt the Findings of Fact and Conclusions of Law set forth above and that the 
agency reinstate the Petitioner with full benefits and award back pay and appropriate attorney fees. 

ORDER 

The Respondent will make the Final Decision in this contested case. It is hereby ordered that the agency serve a copy 
of the Final Decision on the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance 
with North Carolina General Statutes section 150B-36(b). 

NOTICE 

Before the Respondent makes the FINAL DECISION, it is required by North Carolina General Statutes section 150B- 
36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written 
arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the FINAL 



1220 NORTH CAROLINA REGISTER January 2, 1998 12:13 



CONTESTED CASE DECISIONS 



> 



DECISION on all panies and to furnish a copy to the Parties' attorney of record. 
This the 5'" day of December, 1997. 



Brenda B. Becton 
Administrative Law Judge 



) 



I 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1221 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

97 EHR 0195 

97 OSP 0374 



DO WELL GRAY, 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES, 



and 



ONSLOW COL^VTV' 
DEPARTMENT OF HEALTH. 

Respondent. 



RECOMMENDED DECISION 



The above entitled consolidated contested cases were heard before Beecher R. Gray, administrative law judge, on 
August 26, 1997 in Kenansville, North Carolina. A post-hearing motion to dismiss on the basis of an untimely petition was 
filed by Respondent Environment and Natural Resources on October 15, 1997. Petitioner filed a response on October 21, 1997, 
which included the filing of an original petition. 

APPEARANCES 

Petitioner: Jeffrey S. Miller, Esq. 

Respondent Environment and Natural Resources; Elizabeth J. Weese, Assistant Attorney General 

Respondent Onslow County Department of Health: Cynthia L. Turco, Esq. 

ISSLiES 

1 . Whether the revocation of Petitioner's delegated authority to enforce certain State statutes and rules of the Commission 
for Health Services by Respondent Environment and Natural Resources is proper. 

2. Whether Respondent Onslow County Department of Health had just cause to dismiss Petitioner from its employment. 

EXHIBITS ADMITTED 

The following exhibits were admitted into evidence during this contested case hearing: 
Exhibits 1-12 for Respondents and exhibits 2-15, 17, 25, and 26 for Petitioner. 

THE POST-HEARING MOTION TO DISMISS 

Respondent ENR's motion to dismiss, filed on October 15, 1997, is based on the fact that both Petitioner's original and 
copy files in the Office of Administrative Hearings contained, as of October 15, 1997, only fax copies of a petition for contested 
case hearing, an original never having been filed as required within five (5) business days by the rules of the Office of 
Administrative Hearings. N.C. Admin. Code tit. 26, r. 03.0101(4) (January 1994). On October 21, 1997, Petitioner filed a 
response to the motion to dismiss. Petitioner included with his response a copy of Respondent's exhibit number four (4) as 
admitted in this contested case hearing. Respondent's exhibit four is the January 10, 1997 letter from Director Linda Sewall of 
the Division of Environmental Health to Petitioner notif>'ing him that his delegation of authority is being revoked. Director 
Sewall's notice of appeal rights in the January 10, 1997 letter states that Petitioner may appeal her decision by filing a contested 
case petition with the Office of Administrative Hearings at P. O. Drawer 17447 Raleigh, N.C. (emphasis added). The actual 
address of the Office of Administrative Hearings is P. O. Drawer 27447 Raleigh, N.C. At the time Petitioner filed his response, 
he also filed an original contested case petition. 

The time limitation in a contested case such as this one is controlled by the provisions of G.S. 150B-23(f), which 



1222 



NORTH CAROLINA REGISTER 



January 2, 1998 



12:13 



CONTESTED CASE DECISIONS 



> 



provides, in pertinent part: 

[t]he time limitation . . . shall commence when notice is given of the agency decision to all persons aggrieved 
.... The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the 
right, the procedure, and the time limit to file a contested case petition. 

Now, Therefore, having considered Respondent's Motion To Dismiss, Petitioner's response, and the applicable law, I 
find that Director Sewall's notice of appeal rights to Petitioner in her January 10, 1997 letter to him was defective in that it 
failed to accurately provide the correct address of the Office of Administrative Hearings and therefore failed to provide notice of 
the procedure required. Based upon the foregoing, the motion to dismiss should be, and the same hereby is, DENIED . 

FINDINGS OF FACT 

1. The parties received notice of hearing by certified mail more than fifteen (15) days prior to the hearing and each stipulated 
on the record that notice was proper. 

2. Petitioner was employed as an Environmental Health Specialist with the Onslow County Department of Health (OCDH) 
from September 19, 1983 until he was involuntarily discharged on February 10, 1997. 

3. Petitioner was required to hold a delegation of authority from the North Carolina Department of Environment and 
Natural Resources to enforce laws and rules of the Commission for Health Services as a condition of his employment with 
OCDH. His position description provided, in pertinent part: 

KNOWLEDGE, SKILLS & ABILITIES AND TRAINING & EXPERIENCE REQUIREMENTS: 

B. 2. Additional Training/Experience : 

2. Certification (Authorization) in Sewage/Water section and/or Food/Lodging/Institutions 

C. License or Certification Required by Statute or Regulation : 

In addition, employee must hold a valid authorization card from NC Dept. of Environment, Health, and 
Natural Resources, Division of Environmental Health. 

4. Statutory authority for delegation of authority from the Secretary of the Department of Environment and Natural 
Resources to employees of county health departments is contained in Article one of the Public Health Chapter, 130A. It 
provides: 



(b) When requested by the Secretary, a local health department shall enforce the rules of the 

Commission under the supervision of the Department. The local health department shall utilize local staff 
authorized by the Department to enforce the specific rules. N.C. Gen. Stat. Section 130A-4 (b) (November 
1995). 

5. The Commission for Health Services has promulgated rules regarding delegation of authority to enforce the 

Commission's sanitation rules. N.C. Admin. Code tit. 15A, r. 18A.2300 (October 1994). Section .2300 provides, in 
pertinent part: 

.2301 SCOPE OF DELEGATED AUTHORITY 

There shall be three areas of authorization to enforce Commission for Health Services' sanitation rules: 

(1) authority to enforce food, lodging, and institutional sanitation, migrant housing, and 
public swimming pool rules, 

(2) authority to enforce sewage, migrant housing, and public swimming pool rules, and 

(3) authority to enforce both (1) and (2) of this Rule. 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1223 



CONTESTED CASE DECISIONS 



.2303 DELEGATION OF AUTHORITY 

(a) Upon a request from the local health department and upon a determination that the 
individual meets the requirements of rule .2302 of this Section, the district sanitarian shall 
identify the responsibilities which have been assigned to the individual, determine the 
appropriate type of authorization, and work individually with the person for at least three 
days. During this period of evaluation, the district sanitarian will examine the individual's: 

(1) knowledge of appropriate technical material, rules, and laws; 

(2) ability to apply technical material, rules, and laws appropriately, 
and 

(3) ability to work effectively with the public. 

(b) Upon a determination that the criteria in Paragraph (a) have been met and that none of 
the reasons for denial listed in Rule .2305 of this Section exist, the Environmental Health 
Services Section Chief shall issue delegation of authority to enforce a specific area of the 
rules. 

.2305 DENIAL: PROBATION: SUSPENSION: AND REVOCATION 

(a) The Environmental Health Services Section Chief may deny, suspend, or revoke the 
delegation of authority for any of the following: 

(6) incompetency, dishonesty, or unprofessionalism in performing delegated duties; 

(8) failure to properly interpret and enforce laws, rules, and policies; 

(b) Prior to suspension or revocation of delegation of authority, the Environmental Health 
Services Section Chief may place the individual on probation for a period not to exceed two 
years. If the individual does not show satisfactory improvement in the areas given as reasons 
for probation within the stated time period, the Environmental Services Section Chief shall 
suspend or revoke the delegation of authority. 

.2307 APPEALS PROCEDURE 

Appeals concerning the interpretation and enforcement of the rules in this Section shall be made in accordance 
withG.S. 150B. 

6. Official notice was taken of North Carolina General Statutes Chapter 130A and of the Nonh Carolina Administrative 
Code, Title 15A, Chapter 18A. 

7. Chapter 1 508 defines the term license as: 

means any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in 
any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes 
and occupational licenses. N.C. Gen Stat. Section 1508-2(3) (Cum. Supp. 1996). 

8. North Carolina General Statutes Section 150B-3, entitled special provisions on licensing , provides, in pertinent part: 

(b) Before the commencement of proceedings for the suspension, revocation, annulment, withdrawal, recall, 
cancellation, or amendment of any license other than an occupational license, the agency shall give notice to 
the licensee, pursuant to the provisions of G.S. 1508-23. Before the commencement of such proceedings 
involving an occupational license, the agency shall give notice pursuant to the provisions of G.S. 150B-38. In 
either case, the licensee shall be given an opportunity to show compliance with all lawful requirements for 
retention of the license or occupational license. N.C. Gen. Stat. Section 1508-3(b) (Cum. Supp. 1996). 



1224 NORTH CAROLINA REGISTER January 2, 1998 12:13 



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CONTESTED CASE DECISIONS 



9. North Carolina General Statutes Section 150B-23 requires an agency to file a contested case petition in order to commence a 
contested case and, where the dispute concerns a license, the agency must serve a copy of the petition on the license holder. 
N.C. Gen. Stat. Section 150B-23 (a) (Cum. Supp. 1996). 

10. Approximately two years after his employment by the Onslow County Department of Health in 1983, Petitioner was issued 
a delegation of authority by the head of the Sanitation Branch of the Environmental Health Section of the North Carolina 
Department of Human Resources. The (then) District Sanitarian, Charles Jackson, wrote to Richard J. Koonce, Environmental 
Health Supervisor for OCDH, on October 1 , 1985 that: 

[I]t is with some reservation that I am recommending authorization for Dowell Gray. . . . My last two days 
indicated that Dowell can perform the specific duties that you will require of him. However, there is still 
some question about his ability to make decisions that require judgment. 

11. From October 1985 through September, 1996, Petitioner's job performance evaluations were all at the level of meets 
expectations or exceeds expectations or the equivalent. 

12. In March, 1996, Petitioner requested that the OCHD allow him to attend a soils training course. That request was denied 
by Health Director Danny Jacob, who testified at the contested case hearing that lack of funds was the reason for the denial. In 
Health Director Jacob's memo to Petitioner's supervisor, Cameron Lanier, dated March 13, 1996, he said the following: 

I have considered your memo of March 8, 1996 concerning Dowell Gray's request for to (sic) attend training 
for full authorization. Because of time constraints and additional questions 1 have about Dowell's training 
needs I am unable to support your request at this time. I do need to discuss Dowell's current work load with 
you and perhaps with better planning we can send him to the next training session when it is offered. 

13. John Williams is the Department of Environment and Natural Resources Regional Soils Specialist for the Wilmington 
Region, which encompasses Onslow County. John Williams has responsibility for training and evaluating local health 
department staff regarding delegations of authority for on-site wastewater disposal. He recommends issuance, suspension, or 
revocation of delegations of authority. 

14. In May, 1996, conmiunication ensued between John Williams and the OCHD regarding the revocation of an 
improvement permit for on-site sewage disposal issued by Petitioner. The OCHD requested that John Williams work with 
Petitioner and evaluate his performance. 

15. In a memo to Barbara Boswell of the Onslow County Persormel office, dated may 20, 1996, Health Director Jacob made 
the following observations regarding Petitioner's status and performance: 

We have received information from the Division of Environmental Health, Onsite-Waste Water Section (see 
attachments) that reminds us Dowell Gray has questionable skills for making decisions as a Environmental 
Health Specialist. In fact, he has only limited authority granted by the state to work in the waste water 
program. Unfortunately, after a specific site complaint was reviewed by our staff and the state, we have more 
concerns. It's possible that even issuing improvements permits may be beyond the scope of Mr. Gray's 
training and experience. You may recall that I have already discussed similar concerns about Mr. Gray's 
abilities with you in the past. 

At this time, the latest complaint we are investigating is consistent with Mr. Gray's history of poor 
independent decision-making. The technical deficiencies of the problem are being resolved and the 
complainant has the option to appeal the decision of the Health Department to the Office of Administrative 
Hearings. 

Based upon this latest problem with Mr. Gray's work, we now have the documentation necessary to request an 
official evaluation and determination of the basic skills he needs to retain his authorization. A representative 
of the Division of environmental Health will be in Onslow County on June 10, 1996 to work with Mr. Gray 
and validate his continued authorization. I need to remind you of the consequences of this process, however. 
Mr. Gray's authorization is granted by the state and should he lose it, he is useless to the Health 
Department's On-Site Waste-Water Program. 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1225 



CONTESTED CASE DECISIONS 



16. During May, 1996, John Williams did a field evaluation of Petitioner's work on a lot on Topsail Beach. Soils Specialist 
Williams found the lot unsuitable because of wetness and lack of space. Petitioner previously had inspected the same lot and 
had issued an improvement permit for the installation of a sewage disposal system which subsequently was revoked by the 
Onslow County Department of Health. 

17. After the May, 1996 visit, John Williams was requested to return to Onslow County for further evaluation of Petitioner's 
work. John Williams spent June 10, 11, and 13, 1996 in Onslow County evaluating Petitioner's work. Soil Specialist Williams 
found that Petitioner performed adequately during this three day evaluation. At the end of this three day period, John Williams 
recommended that Petitioner be placed on probation regarding his delegation of authority to allow time for strengthening of his 
ability to work alone in the field. John Williams stated to Petitioner and his superiors that Petitioner was going to be placed on 
probation for six (6) months so he could get additional training. Soils Specialist Williams did not return to OCDH to provide 
additional training to Petitioner during the probationary period because of the occurrence of hurricanes Bertha and Fran. The 
OCDH did not provide or arrange any additional training for Petitioner during the probationary period. Petitioner did not 
obtain any additional training on his own initiative. 

18. John Williams next visited Onslow County to evaluate Petitioner's work at the end of the six months probationary period 
on December 12, 1996. He and Petitioner visited three (3) field sites to compare his evaluation of the sites with the evaluation 
performed by Petitioner. On two (2) of the three (3) lots evaluated, John Williams disagreed with all or part of Petitioner's 
evaluations. Petitioner also was given a written vertical separation test designed and administered by John Williams. This 
written test previously had been given to fifteen (15) enviroimiental health specialists by John Williams. The highest number of 
questions incorrectly answered previously was four (4), with an average number being between two (2) and four (4). Petitioner 
incorrectly answered nine (9) questions on this test. 

19. At the conclusion of the work day on December 12, 1996, John Williams stated to Petitioner and his superiors at the 
OCDH that he was going to recommend that Petitioner's delegation of authority be revoked. 

20. Linda Sewall is the Director of the Division of Environmental Health in the Department of Environment and Natural 
Resources. She holds a letter of delegation of authority from (former) Secretary Jonathan Howes authorizing her to implement 
and enforce the rules regarding delegations of authority under Chapter 130 A of the General Statutes of North Carolina. 

21. Director Sewall wrote a letter to Onslow County Health Director Danny Jacob on December 31, 1996 in which she stated 
the following: 

[pjursuant to 15A NCAC 18A .2305 (a)(b), .2305 (a)(8), and .2305(b), it has been determined that Mr. 
Dowell Gray's Delegation of Authority for On-Site Wastewater Treatment and Disposal should be revoked. 



[t]he revocation of Mr. Gray's delegation of authority will be effective 30 days from the date of this letter. . . 

felffective immediately, please do not allow Mr. Gray to sign any permits for on- site wastewater treatment 

systems , (emphasis added). 

This letter was received by Health Director Jacob on January 6, 1997. 

22. Although Director Sewall's letter instructed Health Director Jacob to cause an immediate cessation of Petitioner's 

issuance of permits for on-site wastewater systems, she did not invoke the provisions of G.S. 150B-3 ( c ) or incorporate a 
finding demonstrating a public health, safety, or welfare condition requiring emergency action to justify summary suspension 
of Petitioner's delegation of authority. G.S. 150B-3 ( c ) provides: 

[I|f the agency finds that the public health, safety, or welfare requires emergency action and incorporates this 
finding in its order, summary suspension of a license or occupational license may be ordered effective on the 
date specified in the order or on service of the certified copy of the order at the last known address of the 
licensee, whichever is later, and effective during the proceedings. The proceedings shall be promptly 
commenced and determined. 



1226 NORTH CAROLINA REGISTER January 2, 1998 12:13 



CONTESTED CASE DECISIONS 



[n]othing in this subsection shall be construed as amending or repealing any special statutes, in effect prior to 
February 1, 1976, which provide for the summary suspension of a license. 

N.C. Gen. Stat. Section 150B-3 ( c ) (Cum. Supp. 1996). 

23. On January 10, 1996, Director Sewall wrote a letter to Petitioner in which she stated the following: 

[p]ursuant to ... it has been determined that your Delegation of Authority for On-Site Wastewater Treatment 
and Disposal Systems should be revoked. 



[t]he revocation of your delegation of authority will be effective 30 days from the date of this letter. . . . 
[e]ffective immediately, you should not sign any permits for on-site wastewater treatment systems. 

24. Danny Jacob became Health Director for the OCDH in 1990. Petitioner was on the staff at that time. Upon receiving 
the December 31, 1996 letter from Division of Environmental Health Director Linda Sewall, Health Director Jacob scheduled a 
predismissal conference with Petitioner, Director of OCDH Environmental Health Services, Cameron Lanier, and himself, 
which was conducted on January 13, 1997. At this predismissal conference. Petitioner told Health Director Jacob that he would 
appeal the revocation of his delegation of authority by Director Linda Sewall. 

25. On January 15, 1997, Health Director Jacob wrote a letter to Petitioner informing Petitioner that he was being discharged 
from employment, effective on February 10, 1997 at the close of the work day, for failure to maintain his delegation of 
authority for on-site wastewater treatment and disposal systems. As authority, Health Director Jacob cited special provisions 
on credentials in the rules of the State Personnel Commission which provide: 

(a) By statute, some duties assigned to positions may be performed only by persons who are duly licensed, 
registered or certified as required by the relevant law. 

(b) Employees in such classifications are responsible for maintaining current, valid credentials as required by 
law. Failure to maintain the required credentials is a basis for immediate dismissal without prior warning. An 
employee who is dismissed shall be given a written statement of the reason for the action and his appeal rights. 

N. C. Admin. Code tit. 25, r. .2307 (July 1993). 

CONCLUSIONS OF LAW 

Based upon the foregoing findings of fact, I make the following conclusions of law. 

1 . The parties properly are before the Office of Administrative Hearings. 

2. The delegation of authority for on-site wastewater treatment and disposal systems held by Petitioner for approximately 
eleven (11) years constitutes a license within the meaning of G.S. 150B-2(3). As a license, this delegation of authority is 
subject to the special provisions on licensing in G.S. 150B-3 which require the agency to give notice to the license holder in 
accordance with G.S. 150B-23 before the commencement of proceedings to revoke or suspend the delegation of authority. 

3. Construing the Commission for Health Services' rules on delegation of authority together with G.S. Chapter 130A and 
G.S. Sections 150B-2,-3, and -23, harmonizing these statutes and rules to the greatest extent possible, while giving effect to 
each provision, it is hereby found, as a matter of law, that Respondent Department of Environment and Natural Resources 
committed error when it did not notify Petitioner of its intent to revoke his delegation of authority prior to commencing 
proceedings to do so and when it did not commence a contested case in the Office of Administrative Hearings in order to fulfill 
the statutory mandate to allow Petitioner an opportunity to demonstrate his compliance with all lawful requirements for retention 
of his delegation of authority. 

4. Petitioner is a career State employee for purposes of this hearing under G.S. 126-1.1 and 126-5, since he is, and has been 
for more than the preceding 24 months, in a permanent position appointment in a local health department and subject to the 



12:13 NORTH CAROLINA REGISTER January 2, 1998 1227 



CONTESTED CASE DECISIONS 



State Personnel Act. As a career State employee. Petitioner enjoys the expectation of continued employment and only may be 
dismissed for just cause as provided in G.S. 126-35. 

5. Respondent Onslow County Department of Health presented no evidence of just cause either in the form of written 
warnings for unsatisfactory job performance or unacceptable personal conduct. 

6. Respondent Onslow County Department of Health acted erroneously, as a matter of law, when it relied upon the 
erroneous action of Respondent Environment and Natural Resources attempting to summarily revoke the delegation of authority 
held by Petitioner. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that Petitioner's delegation 
of authority be acknowledged as being in full force and effect until such time as Respondent Environment and Natural Resources 
engages in the proper procedure to revoke or suspend his delegation upon sufficient evidence for such revocation or suspension 
under the Commission for Health Services' rules. It is recommended that Petitioner be reinstated to the position he held on 
February 10, 1997, or to a comparable position; that he receive all benefits to which he would have become entitled but for his 
dismissal on February 10, 1996; and that he receive reasonable attorney's fees and costs associated with this consolidated 
contested case hearing. It is further recommended that Respondent Environment and Natural Resources pay an equal share of 
the reasonable attorney's fees in this consolidated matter. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 276II-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to 
the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in 97 EHR 0195 is the North Carolina Office Department of Environment 
and Natural Resources. The agency that will make the final decision in 97 OSP 0374 is the North Carolina Office of State 
Personnel. 

This the 24th day of November, 1997. 



Beecher R. Gray 
Administrative Law Judge 



1228 NORTH CAROLINA REGISTER January 2, 1998 12:13 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and 
chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North 
Carolina executive branch of government has been assigned a title number. Titles are further broken down into 
chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions 
to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



12:13 



NORTH CAROLINA REGISTER 



January 2, 1998 



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BARCLAYS OFFICIAL NORTM CAROLINA ADMINISTRATIVE CODE - 1997 



DESCRIPTION 



CODE 



ANNUAL 
SUBSCRIPTION PRICE 



Tirie 1 - Dept. of Adminisfration - Complete Tlrie 201 00 001 

Division of Purchase & Contract 20110 051 

Federal Block Grant Funds 20110 331 

TiHe 2 - Dept of Agriculture - Complete Title 202 00 00 1 

Food & Drug Protection Division 202 15 091 

Structural Pest Control Committee 202 15 341 

Agricultural Markets 202 15 431 

Plant Industry 202 15 481 

Animallndustry 202 15 521 

Title 3 - Dept. of State Auditor • Complete TitJe 203 00 001 

Title 4 - Dept. of Commerce - Complete Titie 204 00 001 

Alcoholic Beverage Control Commission 204 15 021 

Banking Commission 204 15 031 

Credit Union Division 204 15 061 

Savings & Loan Division 204 15 091 

Industrial CommissionAVorkers Compensation 204 15 101 

Savings Institutions Division 204 15 161 

Title 5 - Dept. of Corrections - Complete Title 205 00 001 

Division of Prisons 205 15 021 

Title 6 - Council of State - Complete Title 206 00 00 1 

Title 7 - Dept. of Cultural Resources - Complete Title 207 00 001 

Title 8 - State Board of Elections - Complete Title 208 00 00 1 

Title 9 - Offices of the Governor & Lt. Governor - Complete Title 209 00 001 

Title 10 - Dept. of Human Resources - Complete Title 210 00 001 

Licensing of Health Facilities 210 20 101 

Detention Facilities 210 20 201 

Mental Health & Rehabilitation Services 210 20 301 

Social Services 210 20 401 

Children Services/Day Care 210 20 41 1 

Services for the Aging 210 20 421 

Services for the Blind 210 20 431 

Services for the Deaf & Hard of Hearing 210 20 441 

Employment Opportunities . 210 20 451 

Title 1 1 - Dept. of Insurance - Complete Title 21 1 00 001 

Insurance 211 10 01 1 

Consumer Services 211 10 041 

Fire & Rescue Services 21110051 

Agent Services 21110 061 

Engineering & Building Codes 211 10 081 

Title 1 2 - Dept. of Justice - Complete Title 2 1 2 00 00 1 

Private Protective Services 212 10 071 

Policy & Sheriff's Education & Training Standards 212 10 091 

NC Alarm Svstems Licensing Board 212 10 111 

Title 1 3 - Dept. of Labor - Complete Title 2 1 3 00 00 1 

Mine S( Quarry Safety 213 15061 

General Safety/OSHA 213 20 001 

Wage & Hour Rules 213 15 121 

Boiler & Pressure Vessel Safety 213 15 131 

Apprenticeship & Training 213 15 141 

Elevator & Amusement Device Safety 213 15 151 

Title 1 4A - Dept. of Crime Control & Public Safety - Complete Title 2 1 4 00 00 1 

Alcohol Law Enforcement 214 00 081 

Victims Compensation Fund 214 00 111 

Title 1 5A - Dept. of Environ., Hecltli, & Nat. Resources - Complete Title 21 5 00 001 

Environmental Management 215 15 001 

Air Quality 215 15 101 

Water Qualitv 215 15 201 

Land & Vi/jste Management 215 15 301 

Solid Waste Management 215 15 311 



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$140.00 

$35.00 
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$25.00 

$125.00 

$45.00 
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$25.00 
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$30.00 
$35.00 

$70.00 

$35.00 

$30.00 
$60.00 
$30.00 
$45.00 

$470.00 

$95.00 

540.00 

$110.00 

$185.00 

$55.00 

$45.00 

$40.00 

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$45.00 

$90.00 

$80.00 
$30.00 
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$110.00 

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S70.00 
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$45.00 

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$395.00 

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S90.00 

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DESCRjmON 



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Underground Storage Tanki 

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Environmental Health 

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Sanitation 

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Intoxilizer Sc Breathalizer 

Fttie 1 6 - Depf. of Public Instruction ■ Complete Titie 

Elementary St Secondary Education 

Tltie 17 • Department of Revenue - Complete Title 

Taxes on Individuals 
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Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - Completerrtle 

Securities Division 

Titie 1 9A - Dept. of Transportation - Complete Title 

Division of Highways 
Division of Motor Vehicles 

Tide 20 - Dept. of the State Treasurer - Complete Title 

Title 21 • Occupational Licensing Boards - Complete Title 

Title 22 • Administrative Procedures - Repealed 

Title 23 • Community Colleges • Complete Title 

Title 24 - Independent Agencies • Complete Title 

Title 25 - Office of State Personnel - CompleteTitle 

Title 26 - Office of Administrotive Hearings - Complete Title 

Title 27 - North Carolina State Bar - Complete Title 

North Carolina Administrative Code - Complete Code 

(Add S85.00 Shipping and Handling) 

CD-ROM North Carolina Administrative Code 

' updated qunrteriyi 

CD-ROM North Carolina Administrative Code 

(When purchased with the Full Code in Print) 

Master Index 

Master Table of Contents 

Binder(s) TiHed 'Official North Carolina Administrvrrw Coda" 



215 15321 
215 15401 
215 25 001 
215 25 101 
215 25 201 
215 25 301 
21525311 

21600 001 

215 10061 

21700 001 

217 15 101 
217 15 201 
217 15 271 

217 15 291 

21800 001 

218 10060 

21900 001 

219 10021 

219 10031 

220 00 001 

221 00 001 
n/a 

223 00 001 

224 00 001 

225 00 001 

226 00 001 

227 00 001 
299 99 981 

266 00 001 

266 50 001 

288 50 001 
288 80 001 
299 90 000 



$30.00 

$53.00 

$150.00 

$65.00 

$60.00 

$85.00 

$25.00 

$60.00 

$30.00 

$130.00 

$40.00 
$70.00 
$45.00 
$30.00 

S60.00 

$35.00 

S90.00 

$45 00 
$45.00 

S45.00 
$230.00 



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$250.00 



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